
'j^s Tea?, 



PRESENTED BY | ^1 I 5 



NATIONAL BISCUIT COMPANY 



TRADE MARK LITIGATION 



Opinions, Orders, Injunctions and Decrees 

Relating to Unfair Competition and 

Infringement of Trade Marks 



Fifth Edition 

1915 



<**!* 









- \ 






. 






c 
c. 



CONTENTS. 



National Biscuit Company v. Thomas and Clarke 5 

National Biscuit Company v. Baker 11 

National Biscuit Company v. Kennedy 19 

National Biscuit Company v. Ohio Baking Com- 
pany 29 

National Biscuit Company v. Deininger 67 

National Biscuit Company v. Dake Cracker Com- 
pany 75 

National Biscuit Company v. Walter 85 

National Biscuit Company v. Swick 93 

National Biscuit Company v. Punchard Ill 

National Biscuit Company v. Iiargrave Biscuit 

Co 121 

National Biscuit Company r. Hammell Cracker 

Co . 131 

National Biscuit Company v. AVliiteside 139 

National Biscuit Company r. Pacific Coast Biscuit 

Company 1 73 

Tables of Infringements abandoned without suit... 229 



(Etmut Court of tit? lltttten States 

Northern District of Illinois 
Southern Division 



NATIONAL BISCUIT COMPANY 

Complainant, 
vs. 

ALBERT V. THOMAS AND ROBERT D. [ 
CLARKE 

Defendants. J 



IN EQUITY 



DECREE 



OFFIELD, TOWLE & LINTIIICUM 
CHARLES K. OFFIELD 

For Complainant. 

PEIRCE & FISHER 
JAMES H. PEIRCE 

For Defendants. 



6 \a. I sal : ■> "■- ■ ■ Hi A3ffi ~ - -n: 








NATIONAL BISCUIT COMPANY vs. THOMAS AND CLARKE 



FINAL DECREE. 

United States Circuit Court,! 

Northern District of Illinois,)- 

Southern Division. J 

Monday, April 17, 1899. 

Present: Honorable Christian C. Kohlsaat, District 
Judge. 

National Biscuit Company, 

vs. 

Albert V. Thomas and Robert D. 

Clarke. 

This day came the complainant, by Charles K. Offield, 
of the firm of Offield, Towle & Linthicum, its solicitors, 
and of counsel, and the defendants by James H. Peirce, 
of the firm of Messrs. Peirce & Fisher, their solicitors and 
of counsel, and thereupon the following proceedings were 
had: 

This cause coming on to be heard upon final hearing, 
upon the pleadings and affidavits filed herein, and the 
respective counsel being heard for the respective parties 
thereon, and being duly considered, it is therefore or- 
dered, adjudged and decreed as follows : 

First: That the said word or name "Uneeda" is a 
good and valid Trade-mark or trade name for biscuits, 
crackers and other bakery products, and that the title 
thereof, and the entire and exclusive right in the use of 
the same as a Trade-mark or trade name, vest in said 
complainant. 

Second: That the package and wrapper thereof with 
the border and parallelogram arrangement upon the four 
longitudinal sides thereof, and the printed matter in rela- 
tion thereto, as shown by " Complainant 's Exhibit, Com- 
plainant's Package, Trade-mark and Wrapper, " are the 



8 NATIONAL BISCUIT COMPANY vs. THOMAS AND CLARKE 

equitable property, wrapper and label arrangement of 
the complainant herein, in connection with the manufac- 
ture and sale of biscuits, crackers and other bakery 
products. 

Third: That the defendants have infringed upon and 
violated the rights of the complainant by the use of the 
name or word "Uwanta" as a close imitation and simula- 
tion of the Trade-mark or name "Uneeda" of the com- 
plainant, and have closely imitated and simulated the 
package of the said complainant as to size and form, and 
the wrapper thereof as to arrangement of border, respec- 
tive parallelograms and printed matter, in relation there- 
to, in the sale of the biscuits and crackers of said de- 
fendants. 

Fourth: That the said defendants, Albert V. Thomas 
and Eobert D. Clarke, and each of them, and their respec- 
tive agents, servants and employes, and each of them, be 
and hereby are perpetually enjoined from affixing, using 
or causing or permitting to be used or affixed to or upon 
any biscuits, crackers or other bakery products or pack- 
ages manufactured by them, or bought or procured or sold 
by them or for them or either of them, or in which they are 
in any manner interested, the word "Uneeda" or the 
word " Uwanta" or any word or synonym thereof or any 
word calculated to deceive or mislead, or any word color- 
ably different therefrom, and from affixing to any pack- 
age, biscuit, crackers or bakery products any wrapper, 
label or other covering having thereon a border and 
parallelogram arrangement and accompanying letters in 
substantial imitation of the wrapper, label and package 
or box arrangement of the said complainant, and only 
colorably different therefrom, or from using any box or 
package construction, wrapper or label arrangement 
thereof, in the sale of biscuits, crackers and other bakery 
products, so contrived as to lead to the belief or to be 
calculated to lead to the belief, or to be liable to cause 
the public to believe, that the biscuits or crackers oon- 



NATIONAL BISCUIT COMPANY vs. THOMAS AND CLARKE V 

tained in such box, packages, wrappers or other cover- 
ing, was manufactured or sold by the complainant. 

Fifth: It further appearing to the court that the said 
parties have agreed to settle the question of damages to 
the complainant and profits to the defendants out of 
court, within thirty days hereafter, no reference to Mas- 
ter for an accounting is at this time made. 

Sixth: It is further ordered, adjudged and decreed, 
that the defendants pay the costs herein to be taxed, and 
that complainant have execution therefor. 

Northern District or Illinois,) g 
Northern Division. j 

I, S. W. Burnham, Clerk of the Circuit Court of the 
United States, for said Northern District of Illinois, do 
hereby certify the above and foregoing to be a true and 
correct copy of the Decree entered of record in said Court 
on the 17th day of April, A. D. 1899, in the cause wherein 
National Biscuit Company, is the complainant and Albert 
V. Thomas and Eobert D. Clarke are the defendants, as 
the same appears from the original thereof now remain- 
ing in my custody and control. 

In Testimony Whereof, I have hereunto set my hand 
and affixed the seal of said Court, at my office in Chicago, 
in said District, this 18th day of April, A. D. 1899. 

S. W. Burnham, 
Clerk. 




Ctrrmt doturt of th? Httttth States 



Southern District of New York 



NATIONAL BISCUIT COMPANY 

Complainant, 



HENRY D. BAKER and JOHN P. BAKER 

Defendants. v 



IN EQUITY 



OPINION AND ORDER GRANTING 
INIUNCTION 



OFFIELD, TOWLE & LINTHICUM 
CHARLES K. OFFIELD 

For Complainant. 

BRIESEN & KNAUTH 
ARTHUR v. BRIESEN 

For Defendants. 



12 



NATIONAL BISCUIT COMPANY vs. BAKER 





NATIONAL BISCUIT COMPANY vs. BAKER 13 



NATIONAL BISCUIT COMPANY vs. BAKER et al. 
(Circuit Court of the United States, Southern District New York, 
June 27, 1899.) 

Unfair Competition — Preliminary Injunction. 

"Uneeda," as applied to a biscuit, is a proper trade-mark ; and the 
proprietor is entitled to an injunction against the use of "Iwanta" 
by another manufacturer as the name of a similar biscuit put up and 
sold to the trade in packages so similar as to be calculated to deceive 
consumers. 1 

Motion for preliminary injunction against sellers of al- 
leged infringing goods ; the action being defended by the 
Ward-Mackey Company, of Pittsburg, Pa., makers of the 
same. 

Charles K. Offield, for the motion. 

Arthur v. Briesen, opposed. 

LACOMBE, Circuit Judge. This case is too plain to 
waste many words over it, — the principles of trade-mark 
infringement and of unfair competition have been so often 
discussed in this circuit. That " Uneeda, " as applied to 
biscuit, is a proper trade-mark, and that complainant is 
entitled to its exclusive use in that connection, is hardly 
disputed. That it has been most extensively advertised, 
presumably at great expense, is matter of common knowl- 
edge, and is asserted in the moving papers. Defendants 
present the usual voluminous bundle of affidavits by per- 
sons in the trade to the effect that in their opinion no one 
is likely to mistake defendants' biscuit for complainant's. 
As has been often pointed out before, it makes no differ- 



\As to what constitutes unfair competition, see note to Scheuer V 
Muller, 20 C. C. A. l(). r ), and supplementary thereto, under same title 
note to Lare v. Harper, 30 C. C. A. 376. 



14 NATIONAL BISCUIT COMPANY vs. BAKER 

ence that dealers in the article are not deceived. No one 
expects that they will be. It is the probable experience of 
the consumer that the court considers. Here, too, we have 
the manufacturer of the articles complained of, who ex- 
plains, as usual, that, in adopting a trade name by which 
to identify his own product, he has been most "careful 
not to trespass on any rights" of complainant, and that 
" after considerable thought" he selected a name which 
should make the difference between his goods and com- 
plainant's "distinct and plain, so that there could be no 
possibility of mistake." It is a curious fact that so many 
manufacturers of proprietary articles, when confronted 
with some well-advertised trade name or mark of a rival 
manufacturer, seem to find their inventive faculties so 
singularly unresponsive to their efforts to differentiate. 
Thus, in one case, with the word "Cottolene" before him, 
defendant's best effort at differentiation resulted in " Cot- 
toleo," and "Mongolia" seemed to another defendant en- 
tirely unlike "Magnolia." The manufacturer of the 
articles which defendants in the case at bar are selling 
seems to have had no better luck, for, with the word 
"Uneeda" before him, his device to avoid confusion was 
the adoption of the word "Iwanta." The incessant use 
of the personal pronouns in daily speech has associated 
in every one's mind the sounds represented by the letters 
"I" and "U"; the two words are of precisely the same 
length; both end with the same letter, "A"; and both ex- 
press the same idea, namely, that the prospective pur- 
chaser's personal comfort would be promoted by the ac- 
quisition of a biscuit. There are, as also is usual, a num- 
ber of minor differences between the forms and the dress 
of the two packages, which are expatiated upon in 
the affidavits and the brief; but no one can look 
at both packages without perceiving that there are 
strong resemblances, which could easily have been 
avoided had there been an honest effort to 
give defendants' goods a distinctive dress. Both 



NATIONAL BISCUIT COMPANY vs. BAKER 



15 



name and dress are clearly calculated to mislead, and the 
statements that both were adopted with an eye single to 
differentiation strain the credulity of the court beyond the 
breaking point. Complainant may take a preliminary in- 
junction against the use of the trade-name "Iwanta," and 
of the present style of package ; also against similar col- 
orable imitations of complainant's trade-name, "Unee- 
da," and of his style of package. 

95 Fed. Eep., 135. 



16 NATIONAL BISCUIT COMPANY vs. BAKER 

INJUNCTION OEDER. 

United States Circuit Court. 

Southern District of New York. 

National Biscuit Company, 

Complainant, 
vs. 
Henry D. Baker and John P. 
Baker, 

Defendants. 



>In Equity. 



Complainant having moved the Court that a prelim- 
inary injunction issue against the above-named defend- 
ants in accordance with the prayer of the bill of complaint 
herein, and Charles K. Offield, Esq., of counsel for com- 
plainant, having been heard in support of the motion, and 
Arthur v. Briesen, Esq., of counsel for defendants, having 
been heard in opposition ; it is, on motion of Offield, Towle 
& Linthicum, complainant's solicitors, 

Ordered that the said motion be and the same hereby is 
granted and that an injunction issue against the said de- 
fendants Henry D. Baker and John P. Baker and each of 
them and their respective agents, servants and employees 
and each of them enjoining and restraining them until the 
further order of this court from affixing, using or causing 
or permitting to be used or affixed to or upon any biscuits, 
crackers or other bakery products or packages thereof, 
handled or sold by them, or bought or procured to be sold 
by them, or for them, or either of them, or in which they 
are in any manner interested, the word "Iwanta" or 
"Uneeda", or against similar colorable imitation thereof, 
or from affixing to any package of biscuit, crackers, or 
other bakery products, any wrapper, label or other cover- 
ing in substantial imitation of the wrapper, label and 



NATIONAL BISCUIT COMPANY VS. BAKER 17 

package of said complainant, or any similar colorable imi- 
tation of complainant's style of package, so contrived as 
to lead to the belief or to be calculated to lead to the belief 
or to be liable to cause the public to believe that the biscuit 
or crackers contained in such package, wrapper or other 
covering are manufactured and sold by the complainant. 
Dated New York, Aug. 11, 1899. 

E. Henry Lacombe, 
U. S. Circuit Judge. 

(Endorsed) : United States Circuit Court, Southern 
District of New York. — National Biscuit Company, Com- 
plainant, vs. Henry D. Baker and John P. Baker, Defend- 
ants. — Order. — Briesen & Knauth, Solicitors for Defend- 
ants, 229 Broadway, Borough of Manhattan, New York. 
— U. S. Circuit Court, Filed Aug. 11, 1899, John A. 
Shields, Clerk. 



United States of America, \ 

Southern District of New York.j 

I, John A. Shields, clerk of the Circuit Court of the 
United States in and for the Second Circuit and Southern 
District of New York, 

Do Hereby Certify that I have compared the preceding 
with the original Order granting Injunction in the cause 
entitled National Biscuit Company, Complainant, vs. 
Henry D. Baker and John P. Baker, Defendants, on file 



18 NATIONAL BISCUIT COMPANY vs. BAKER 

and of record in my office, and that the same is a true and 
correct transcript therefrom, and of the whole of said 
original. 

In Testimony Whereof, I have hereunto set my hand 
and affixed the seal of said court, at the City of New York, 
in the District and Circuit above-named, this 27th day of 
May in the year of our Lord one thousand nine hundred 
and four, and of the Independence of the United States 
the one hundred and twenty-eighth. 

Joh^ A. Shields, 

Clerk. 




Ctrrutt Olottrt of tlj? T&mttb States 

Northern District of Illinois 
Northern Division 



NATIONAL BISCUIT COMPANY 

Complainant, 



THEODORE WEISE AND JOHN P. 
KENNEDY, 



Defendant 



IN EQUITY 



ORDER, INJUNCTION AND ORDER 
MAKING INJUNCTION PERPETUAL 



OFFIELD, TOWLE & LIXTHICUM 

For Complainant. 

ARCHIBALD CATTEL 

For Defendants. 



NATIONAL BISCUIT COMPANY vs. KENNEDY 21 

INJUNCTION OEDEB. 

Circuit Court of the United States, 

Northern District of Illinois, 

Northern Division. 

July 5, 1900, 

Present, Hon. Christian C. Kohlsaat, District Judge. 

o™° nal BiSCUlt Com P any ' ] Bill for Infringement 

£i ^ w^ S ' ^ t i t> V of Trade-Mark and 
Theodore Weise and John P. Equitable Rights. 

Kennedy. J 

This case coming on to be heard upon motion for pre- 
liminary injunction upon pleadings and affidavits filed 
and exhibits referred to, and having been duly heard 
and considered, it is ordered, adjudged and decreed as 
follows : 

First: That the said complainant has good title and 
right in and to the said trade-mark or name " Ken- 
nedy's," or "Kennedy's Biscuit" and "Kennedy's City 
Soda Crackers" as applied to bakery products, and in 
and to the particular and special label, package or carton 
associated with the sale thereof as identified by the bill 
of complaint and filed herein. 

Second: That the said defendants have violated and 
infringed upon said complainant's right, title and interest 
in and to said trade-name, marks or words "Kennedy's," 
"Kennedy's Biscuit" and "Kennedy's City Soda Crack- 
ers," and in and to the label, carton and package identi- 
fied therewith. 

Third: That the said defendants, and each of them, 
their servants and agents, and all claiming or holding 
through or under them, be until further order of the 
court enjoined and restrained from in any manner what- 



22 NATIONAL BISCUIT COMPANY VS. KENNEDY 

soever making use of the words " Kennedy's," "Ken- 
nedy's City Soda Crackers" or "Kennedy's Biscuit," or 
any words substantially like the same as the name or 
designation, or as any part of the name or designation, 
of any bakery products whatsoever not by or for the 
complainant manufactured; and from in any manner 
whatsoever making use of the words "Kennedy's," 
"Kennedy's City Soda Crackers" or "Kennedy's Bis- 
cuit," or any words substantially like the same, as the 
name or designation, or as any part of the name or de- 
signation, of any bakery products whatsoever not manu- 
factured by or for the complainant, which shall be put up 
in carton like those hereinbefore described as the pack- 
ages by the defendants used and availed of, and other- 
wise in every way from making use in connection with, 
the manufacture or sale of bakery products whatsoever,, 
not of the complainant's production, of packages which. 
shall be so nearly like the complainant's packages here- 
inbefore described as to be calculated to mislead; and 
otherwise in every way enjoining and restraining the 
said defendants from fraudulently making use of the 
words "Kennedy's" "Kennedy's City Soda Crackers" 
or "Kennedy's Biscuit" in connection with the sale of 
bakery products, and from doing any act or thing what- 
soever that shall be calculated to cause any bakery prod- 
ucts not manufactured by the complainant to be offered 
or sold as "Kennedy's Biscuit" or "Kennedy's City 
Soda Crackers," or as bakery products or crackers manu- 
factured by or for the complainant. 



NATIONAL BISCUIT COMPANY vs. KENNEDY 2& 



Northern District of Illinois, k , 
Northern Division. 

I, Marshall E. Sampsell, clerk of the Circuit Court of 
the United States for said Northern District of Illinois, 
do hereby certify the above and foregoing to be a true 
and complete copy of the order entered of record in said 
court on the 5th day of July, A. D. 1900, in the cause 
wherein National Biscuit Company is the complainant 
and Theodore Weise et al. are the defendants, as the 
same appears from the original records thereof now re- 
maining in my custody and control. 

In Testimony Whereof, I have hereunto set my hand, 
and affixed the seal of said court at my office in Chicago 
in said district, this 26th day of May, A. D. 1904. 

Marshall E. Sampsell, 

Clerk. 




24 NATIONAL BISCUIT COMPANY vs. KENNEDY 



INJUNCTION. 

Circuit Court of the United States of America,] 

Northern District of Illinois, f ss. 

Northern Division. J 

THE UNITED STATES OF AMERICA, 

To Theodore Weise and John P. Kennedy and to your 
Counselors, Attorneys, Solicitors, Trustees, Agents, 
Clerks, Employes, Servants and Workmen, and to each 
and every of you, Greeting: 

Whereas, It liatli been represented to the Judges of 
our Circuit Court of the United States for the Northern 
Division of the Northern District of Illinois in Chan- 
cery sitting, on the part of National Biscuit Company, 
complainant, in its certain bill of complaint, exhibited in 
our said Circuit Court, on the Chancery side thereof, 
before the Judges of said Court, against you, the said 
Theodore Weise and John P. Kennedy, to be relieved 
touching the matters complained of. In which said bill 
it is stated, among other things, that you are combining 
and confederating with others to injure the complainant 
touching the matters set forth in said bill, and that your 
actings and doings in the premises are contrary to equity 
and good conscience. And it being ordered that a Writ 
of Preliminary Injunction issue out of said court, upon 
said bill, enjoining and restraining you, and each of you, 
as prayed for in said bill ; We therefore, in consideration 
thereof, and of the particular matters in said bill set 
forth, do strictly command you, the said Theodore Weise 
and John P. Kennedy, your Counselors, Attorneys, Solici- 
tors, Trustees, Agents, Clerks, Employes, Servants and 
Workmen, and each and every of you, that you do abso- 
lutely desist and refrain from in any manner whatso- 



NATIONAL BISCUIT COMPANY vs. KENNEDY -£> 

ever making use of the words "Kennedy's," "Kennedy's 
City Soda Crackers" or "Kennedy's Biscuit," or any 
words substantially like the same as the name or desig- 
nation, or as any part of the name or designation, of any 
bakery products whatsoever not by or for the complain- 
ant manufactured; and from in any manner whatsoever 
making use of the words "Kennedy's," "Kennedy's 
City Soda Crackers" or "Kennedy's Biscuit," or any 
words substantially like the same, as the name or desig- 
nation, or as any part of the name or designation, 
of any bakery products whatsoever not manu- 
factured by or for the complainant, which shall be put up 
in a carton like those hereinbefore described as the pack- 
ages by the defendants used and availed of, and other- 
wise in every way from making use in connection with the 
manufacture or sale of bakery products whatsoever, not 
of the complainant's production, of packages which shall 
be so nearly like the complainant's packages hereinbe- 
fore described as to be calculated to mislead; and other- 
wise in every way enjoining and restraining the said de- 
fendants from fraudulently making use of the words 
"Kennedy's," "Kennedy's City Soda Crackers" or 
"Kennedy's Biscuit" in connection with the sale of 
bakery products ; and from doing any act or thing what- 
soever that shall be calculated to cause any bakery 
products not manufactured by the complainant to be of- 
fered or sold as "Kennedy's Biscuit" or "Kennedy's 
City Soda Crackers," or as bakery products or crackers 
manufactured by or for the complainant, until this Hon- 
orable Court, in Chancery sitting, shall make 4 oilier order 
to the contrary. Hereof fail not, under penalty of what 
the law directs. 

To the Marshal of the Northern District of Illinois, 
to execute, and return in due form of law. 

Witness, the Hon. Melville W. Fuller, Chief Justice of 
the United States of America, al Chicago, in said Dis- 
trict, this 5th day of July, in the year of our Lord one 



26 



NATIONAL BISCUIT COMPANY vs. KENNEDY 



thousand nine hundred and of our Independence the one 
hundred and twenty-fifth year. 

S. W. Boxham, 
Clerk. 




Northern District of Illinois, \ 
Nobthebn Division. \ 

I, Marshall E. Sampsell, Clerk of the Circuit Court of 
the United States for said Northern District of Illinois, 
do hereby certify the above and foregoing to be a true 
and complete copy of the injunction writ, filed in said 
court on the 8th day of July, A. D. 1904, in the cause 
wherein National Biscuit Company, is the complainant 
and Theodore TTeise et ah are the defendants, as the 
same appears from the original now remaining in my 
custody and control. 

In Testimony Whereof, I have hereunto set my hand 
and affixed the seal of said Court at my office in Chicago,. 
in said District, this 8th day of July, A. D. 1904. 

Marshall E. Sampsell, 

Clerk. 




NATIONAL BISCUIT COMPANY vs. KENNEDY 



ORDER MAKING INJUNCTION PERMANENT. 

Circuit Court of the United States, 

Northern District of Illinois, 

Northern Division. 

June 5, 1902. 

Present, Hon. Christian C. Kohlsaat, District Judge. 



National Biscuit Company, 
25,598 vs. 

Theodore Weise and John P. 
Kennedy. 



Bill for Infringement 
of Trade-Mark and 
Equitable Rights. 



This cause coming on to be heard upon the pleadings as 
tiled herein, Messrs. Offield, Towle & Linthicum appearing 
as solicitors and of counsel for said complainant, the 
National Biscuit Company, Mr. Archibald Cattel appear- 
ing as solicitor and of counsel for the said defendants, 
Theodore Weise and John P. Kennedy, and it appearing 
to the court that the defendants do not desire further to 
contest this action, and that they have settled with the 
complainant for the damages, profits and costs arising 
out of the acts complained of, and that nothing remains 
as to said litigation except as to the subject-matter of the 
injunction. It is therefore ordered, adjudged and decreed, 
as follows, viz. : 

That the Interlocutory injunction heretofore issued and 
served upon the defendants in this cause be, and the same 
hereby is, made perpetual, and that this decree be entered 
and stand as a final decree in the above cause. 



28 



NATIONAL BISCUIT COMPANY 



KENNEDY 



Xortheex District of Illinois./ 



Northern Division. 



ss. 



I, Marshall E. Sainpsell, clerk of the Circuit Court of 
the United States, for said Northern District of Illi- 
nois, do hereby certify the above and foregoing to be a 
true and complete copy of the order entered of record in 
said court on the 5th day of June, A. D. 1902, in the cause 
wherein National Biscuit Company is the complainant and 
Theodore TVeise et ah are the defendants, as the same 
appears from the original records thereof now remaining 
in my custody and control. 

In Testimony TVhereof, I have hereunto set my hand 
and affixed the seal of said court at my office in Chicago, 
in said District, this 26th day of May, A. D. 1904. 

Marshall E. Savlpsell, 
Clerl. 




(Hirnrit Qlmtrt of ttyt lmtp& States 

Northern District of Ohio 
Eastern Division 



NATIONAL BISCUIT COMPANY 

Complainant, 



THE OHIO BAKING COMPANY, STEPHEN 

C. MORRIS and GEORGE E. COLLINGS 

Defendants. 



IN EQUITY 
No. 6131 



OPINION AND DECREE 



SQUIRE, SANDERS & DEMPSEY 
OFFIELD, TOWLE & LINTHICUM 
EARL D. BABST 

For Complainant. 

BANNING & BANNING 
BENJAMIN C. STARR 

For Defendants. 



30 NATIONAL BISCUIT COMPANY V8. OHIO BAKING COMPANY 



VBftRVRNSEESn 






BBEfA EffAGlmnS 



SODA CRACKERS _j 



NATIONAL BISCUIT COMPANY VS. OHIO BAKING COMPANY 31 



NATIONAL BISCUIT COMPANY VS. OHIO BAKING COMPANY ET AL. 

(Circuit Court of the United States, Northern District Ohio, Eastern 
Division. December 21, 1900.) 

No. 6131. 

1. Unfair Competition — Imitation of Packages. 

While a defendant may have the right to use every one of the 
elements entering into complainant's trade-mark and packages if 
used separately, yet his use of the same in combination, for the evi- 
dent purpose of imitating in appearance complainant's packages, 
constitutes unfair competition. 

In Equity. On motion for preliminary injunction. For 
opinion on appeal, see 127 Fed., 116. 

Squire, Sanders & Dempsey, Offield, Towle & Linthicum, 
and Earl D. Babst, for complainant. 

Banning- & Banning and Benjamin C. Starr, for defend- 
ants. 

WANTY, District Judge. In this case a motion for a 
preliminary injunction has heretofore been tiled, and was 
argued the other day, and I have come to a conclusion in 
the matter. The bill in this case was tiled to restrain the 
defendants from infringing the complainant's trade-mark 
and to restrain fraudulent competition in imitating the 
complainant's packages or cartons in size and color and 
general appearance. The defendants claim that they have 
the right to use the straight lines and curves in a trade- 
mark, that they have the right to use the word "seal," 
that they have the right to use white lines on a red back- 
ground, and that they have the right to use cartons of a 
particular size, and that they have the right to use the 



Hi Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 
165; Lare v. Harper & Bros., 30 C. C. A. 370. 



32 NATIONAL BISCUIT COMPANY VS. OHIO BAKING COMPANY 

different colors which the}' have adopted for their pack- 
ages, and that the complainant cannot appropriate any of 
these things so as to preclude others from their use. All 
of these claims of the defendants are true, but it is ap- 
parent, under the showing here, that the defendants de- 
liberately sat down and made their packages as like in 
general appearance to the complainant's packages as 
would be necessary to catch the customer and escape the 
courts. They had the right to use the background used 
by the complainant, they had the right to use clipped 
corners and the word "Seal," they had the right to use 
any color that the complainant used for cartons, and they 
had the right to use packages of the size used by the com- 
plainant. But when they used all these things in com- 
bination, the object is too apparent to admit of argument. 
The defendants put up a package which they say is exact- 
ly the size of complainant's package, because it contains 
the same quantity of crackers, which, if put up in a con- 
venient manner, necessarily compels the use of the same- 
size package. But this does not explain why on the 
largest-size package the defendants have the exact shade 
of red used by complainant, and have the white lettering 
of substantially the same type, and on the next-size pack- 
age, they have blue, like complainant's. Why did they 
not use blue on the largest-size package and red on the 
smaller? Xo one can read the pleadings and affidavits in 
this case and escape the conclusion that the defendants 
are endeavoring to appropriate the trade of the com- 
plainant by imitating, in its general effect, its seal and 
packages, and to escape the legal effect of such an at- 
tempt by making dissimilar minor details. The fraud is 
apparent, and the motion for a preliminary injunction 
will be granted. 

127 Fed. Rep., 160. 



NATIONAL BISCUIT COMPANY VS. OHIO BAKING COMPANY 



33 



FINAL DECEEE. 

The United States of America,] 
Northern District of Ohio, \- ss. 
Eastern; Division. 

At a stated term of the Circuit Court of the United 
States, within and for the Eastern Division of the North- 
ern District of Ohio, begun and held at the City of Cleve- 
land, in said District, on the first Tuesday in April, being 
the 7th day of said month, in the year of our Lord one 
thousand nine hundred and three, and of the In- 
dependence of the United States of America the one hun- 
dred and twenty-seventh, to wit : On Friday, the 22" day 
of May, A. D. 1903. 

Present: The Honorable Francis J. Wing, U. S. Dis- 
trict Judge. 

Among the proceedings then and there had were the 
following, to wit: 



National Biscuit Company, 
vs. 
The Ohio Baking Company, 
Stephen C. Morris, and George 
E. Collings. 



In Equitv 
6131. 



This cause coming on to be heard upon pleadings 
and proof, and having been fully argued by counsel re- 
spectively for both parties litigant; Mr. Charles K. Of- 
field, Mr. Andrew Squire, and Mr. Earl D. Babst, for 
Complainant; Mr. Thomas A. Banning, and Mr. Ben- 
jamin C. Starr, for Defendants: And the court being 
fully advised, and having fully considered the same, 
orders, adjudges, and decrees as follows: 

1. That the said Complainant, the National Biscuit 
Company's "In-er-seal" Trade Mark is a good and valid 



34 NATIONAL BISCUIT COMPANY vs. OHIO BAKING COMPANY 

Trade Mark, and the complainant has full right and title 
thereto, and therein, as alleged in said bill of complaint 
filed herein. 

2. That the said defendants have infringed upon and 
violated said complainant's "In-er-seal" Trade Mark, 
as alleged in said bill of complaint, by putting up and 
selling bakery products in cartons or packages like those 
marked "Complainant's Exhibits Defendants' Infring- 
ing Packages Xos. 1, 2 and 3" and "Defendants' Ex- 
hibits Xos. 13, 14 and 15." 

3. That the said defendants have violated com- 
plainant's equitable rights; in putting up, selling and of- 
fering for sale, cartons or packages of bakery products 
which present a general appearance as to collocation of 
size, shape, color, lettering, spacing and ornamentation, 
closely resembling complainant's several exhibits re- 
spectively referred to in the bill of complaint, and marked 
as "Complainant's Exhibits." 

4. That the said defendants, and each of them, their 
agents, servants, and employes, be and hereby are, en- 
joined until the further order of this court from 

a. Imitating or simulating complainant 's l ' In-er-seal ' ' 
Trade Mark, or manufacturing, handling, or selling car- 
tons of bakery products having thereon any imitation of 
complainant's "In-er-seal" Trade Mark, calculated to 
mislead or deceive; like those marked Complainant's 
Exhibits Defendants' Infringing Packages ISTos. 1, 2 and 
3, and Defendants' Exhibits Nos. 13, 14 and 15, but this 
shall not be construed as restraining defendants from 
selling cartons or packages of bakery products with their 
asserted Trade Mark thereon, provided such Trade Mark 
is so differentiated in general appearance and applica- 
tion from said complainant's Trade Mark that it is not 
calculated to deceive the ultimate ordinary purchaser. 

b. From putting up and selling, or offering for sale, the 



NATIONAL BISCUIT COMPANY vs. OHIO BAKING COMPANY 35 

particular forms of cartons or packages referred to in the 
bill of complaint, and identified therein as "Complain- 
ant's Exhibit Defendants' Infringing Packages Nos. 1, 
2 and 3," or any other form of packages or cartons, re- 
spectively, which shall, by reason of the collocation of 
size, shape, colors, lettering, spacing and ornamentation, 
present a general appearance as closely resembling com- 
plainant's several exhibits respectively referred to in the 
bill of complaint and marked as Complainant's Exhibits 
— as do the said defendants' respectively infringing pack- 
ages Nos. 1, 2 and 3, but this shall not be construed as re- 
straining defendants from selling packages or cartons of 
the size, weight and shape of complainant's packages, nor 
from using the respective colors as wrappers for such 
packages, provided such packages are so differentiated 
in general appearance from said complainant's respec- 
tive packages that they are not calculated to deceive the 
ultimate ordinary purchaser. 

5. That the said complainant has a right to recover any 
and all profits accruing to the said defendants from the 
unlawful violation and infringement of said complainant 's 
rights, and to recover all damages suffered by and ac- 
cruing to said complainant by reason of the commitment 
of said unlawful and infringing acts, together with the 
costs herein to be taxed, and that the same may be refer- 
red to Irvin Belford, he being a suitable person as blaster 
of this Court, and approved by the parties to take, stair 
and report an account of such damages and profits under 
and in accordance with this decree, and that upon such 
accounting the testimony heretofore taken by either party 
in this case, may be read by either party, and referred to 
and considered by said master. 

Tn open court the defendant prayed an appeal, which 
was allowed and bond fixed at $500.00. 



36 



NATIONAL BISCUIT COMPANY vs. OHIO BAKING COMPANY 



The United States, 

of America. 



ss. 



I, Irvin Belford, Clerk of the Circuit Court of the 
United States, within and for the Northern District of the 
State of Ohio, do hereby certify that I have compared 
the within and foregoing transcript with the original de- 
cree entered upon the Journal of the proceedings of said 
Court in the therein entitled Cause, at the term, and on 
the day therein named: and do further certify that the 
same is a true, full and complete transcript and copy 
thereof. 

Witness, my official signature and the seal of said 
Court, at Cleveland, in said District, this 1st day of June, 
A. D. 1903, and in the 127" year of the Independence of 
the United States of America. 

Ibvtn Belford, 

Clerk. 
By Thomas M. Sherlock, 

Deputy Clerk. 




Uttttea States (Etmrit Court of Appeals 



Sixth Circuit 



OHIO BAKING COMPANY, STEPHEN C. 
MORRIS and GEORGE E. COLLINGS, 

Appellants, 



NATIONAL BISCUIT COMPANY 



Appellee. J 



IN EQUITY 

No. 1232 



OPINION 



THOMAS A. BANNING 
EPHRAIM BANNING 
BENJAMIN C. STARR 

For Appellants. 

SQUIRE, SANDERS & DEMPSEY 
OFFIELD, TOWLE & LINTHICUM 
EARL D. BABST 

For Appellee. 



NATIONAL BISCUIT COMPANY vs. OHIO BAKING COMPANY 39 



OHIO BAKING CO. et al vs. NATIONAL BISCUIT COMPANY 

(Circuit Court of Appeals of the United States, Sixth Circuit. 
January 21, 1904.) 

No. 1232. 

1. Trade Mark — Protection — Infringement. 

The right of the owner of a trade-mark to be protected in the 
exclusive use thereof is not dependent on the federal statute au- 
thorizing registration. 

2. Same — Nature of Relief — Unfair Domestic Competition. 

Where the ground for relief in a suit for infringement of a trade- 
mark was unfair competition in domestic commerce, and the cause 
of action alleged was an imitation of plaintiff's trade-mark on cartons 
used in local trade, and there was no allegation that complainant's 
foreign trade was injured by the acts complained of, the fact that 
the trade-mark was registered, and that complainant was entitled 
to protection under the federal statute with regard to foreign com- 
merce, was immaterial. 

3. Same — Evidence. 

Complainant's "In-er-seal" trade-mark, as known to the public, 
was printed in white letters on a vivid red back-ground of a peculiar 
shade, and applied to the ends of cracker and biscuit cartons, in 
which complainant's goods were packed for sale. Shortly, there- 
after defendant conceived a trade-mark with the words "Factory 
Seal" printed on the same colored labels, which it applied to the 
ends of similar packages of its biscuits. At the time defendant 
adopted this trade-mark it knew complainant's crackers were the 
only ones sold with the red seal on the end of the cartons, and that 
its trade-marks were liable to deceive careless purchasers. Held, 
that defendants' trade-mark, when so printed and used, was an 
infringement on complainant's trade-mark, and should be enjoined. 

Appeal from the Circuit Court of the United States for 
the Northern District of Ohio. For opinion below, see 127 
Fed., 160. 

Thomas A. Banning, Ephraim Banning, and Benjamin 
C. Starr, for appellants. 

Squire, Sanders & Dempscv, Karl D. Babst, and Offield, 
Towle & Linthieum, for appellee. 

Before Litbton and Richards, Circuil Judges, mid 
Thompson, District Judge. 



40 NATIONAL BISCUIT COMPANY vs. OHIO BAKING COMPANY 



BICHABDS, Circuit Judge. In March, 1900, the com- 
plainant below, the National Biscuit Company, was en- 
gaged in the manufacture and sale of bakery products, 
consisting of biscuits, crackers, etc. It owned and operated 
some 75 plants, located in the leading cities of the United 
States, the products of which were put out in packages 
or cartons under different factory names, indicating their 
character and origin. For the purpose of identifying all 
these products, making them known to the public, and 
guarantying their authenticity, it adopted an arbitrary 
design or symbol known as the "In-er-seal" trade-mark 
for use on its cartons, and at a cost of hundreds of thou- 
sands of dollars advertised it throughout this country and 
the world as the mark by which its goods might be recog- 
nized. Except for the use of some green and orange labels, 
which were soon abandoned, the "In-er Seal" trade-mark 
was printed in white letters upon a vivid red label with 
clipped corners, and applied to the ends of the cartons. 
The trade-mark was registered, the application being filed 
May 12, 1900. In the latter part of August, 1900, the de- 
fendant below, the Ohio Baking Company, was engaged 
at Cleveland, Ohio, in making and selling bread and cakes. 
It had been so engaged for 17 years. At this time, having 
decided to enter upon the biscuit and cracker business, it 
employed one Miles, a former employe of the National 
Biscuit Company, and gave him charge as manager of the 
cracker department about to be established. Within three 
or four weeks afterwards it began to place its biscuits and 
crackers upon the market, packed in cartons of substan- 
tially the same size as those used by the National Biscuit 
Company, and in some cases of the same color, style of 
ornamentation, and general appearance, all having on the 
ends, printed in white letters upon red labels with clipped 
corners, a fanciful figure, known as the "Factory Seal" 



NATIONAL BISCUIT COMrANY vs. OHIO BAKING COMPANY 



41 



trade-mark, which the Ohio Baking Company, upon enter- 
ing the cracker business, for the first time adopted and 
began to use. This trade-mark was registered, the appli- 
cation being filed October 9, 1900. For the purpose of 
comparison, the two trade-marks are shown in the follow- 
ing illustrations, the vivid red background being desig- 
nated by the black background : 



42 NATIONAL BISCUIT COMPANY ». OHIO BAKING COMPANY 





NATIONAL BISCUIT COMPANY vs. OHIO BAKING COMPANY 43 

The original suit was brought by the National Biscuit 
Company, to restrain the Ohio Baking Company and its 
officers from advertising or selling its goods in any pack- 
age having on it the "In-er-seal" trade-mark or any imi- 
tation thereof, or in any package dressed in imitation of 
one used by the National Biscuit Company, and for an ac- 
counting of the profits made by such unfair competition. 

On an application for a preliminary injunction, Judge 
Wanty restrained the defendant below, first, from using 
the "In-er-seal" trade-mark upon cartons containing its 
bakery products, as shown in certain exhibits, or adver- 
tising or selling its bakery products in cartons containing 
thereon the "In-er-seal" trade-mark or any imitation 
thereof ; and, second, from putting up and selling or offer- 
ing for sale the particular cartons shown in certain ex- 
hibits, or any other cartons resembling the complainant's 
cartons as closely as they do. But this was not to be con- 
strued as restraining the defendant from selling cartons 
of the size, weight, and shape of the complainant's, nor 
from using the respective colors as wrappers, provided 
they were so differentiated in general appearance as not 
to be calculated to deceive the ultimate ordinary pur- 
chaser. There was an appeal from Judge Wanty 's order, 
and this court reversed the portion respecting the use of 
the "In-er-seal" trade-mark or any imitation thereof, but 
affirmed the rest. Upon the return of the case to the Circuit 
Court, an application was made to Judge Severens for 
an attachment for contempt against the defendant below 
for putting out certain cartons in violation of the second 
part of Judge Wanty 's order, but Jndge Severens dis- 
charged the rule, holding that the cartons did not present 
a general appearance so closely resembling the com- 
plainant's exhibit mentioned in the restraining order as 
to come within its terms. Afterwards the case came on for 



44 NATIONAL BISCUIT COMPANY vs. OHIO BAKING COMPANY 

hearing before the Circuit Court, Judge Wing sitting, 
upon the pleadings and proof, and a decree was rendered 
in favor of the complainant, holding: (1) That the "Tn- 
er-seal" trade-mark is a good and valid trade-mark. (2) 
That the defendants have infringed this trade-mark by 
putting up and selling bakery products in cartons like 
those shown in certain exhibits mentioned. (3) That the 
defendants have violated the complainant's equitable 
rights in putting up and selling its bakery products in 
cartons which present a general appearance closely re- 
sembling those of the complainant as shown in certain ex- 
hibits. (4) That the defendants be enjoined: (a) From 
imitating the "In-er-soal" trade-mark, or making, han- 
dling, or selling cartons of bakery products having there- 
on any imitation of the "In-er-seal" trade-mark, calcu- 
lated to mislead or deceive, like those shown in certain 
exhibits: "but this shall not be construed as restraining 
defendants from selling cartons or packages of bakery 
products with their asserted trade-mark thereon, pro- 
vided such trade-mark is so differentiated in general ap- 
pearance and application from said complainant's trade- 
mark that it is not calculated to deceive the ultimate 
ordinary purchaser." (b) From putting up and selling 
or offering for sale the particular forms of cartons shown 
in certain exhibits, or cartons resembling them so closely 
as to mislead or deceive; but this shall not be construed 
as restraining the defendants from selling cartons of the 
size, weight, and shape of the complainant's, but so dif- 
ferentiated in general appearance as not to be calculated 
to deceive the ordinary purchaser. (5) That the com- 
plainant has the right to recover all profits accruing from 
the violation and infringement of its rights, and that the 
case be referred to a master to take and report an ac- 
count of the damages and profits. From this decree an 
appeal has been taken to this court. 



NATIONAL BISCUIT COMrANY VS. OHIO BAKING COMPANY 



45 



The right to be protected in the exclusive use of a trade- 
mark is not dependent on the federal statute authorizing 
the registration of certain trade-marks. It has been long 
recognized by the common law and enforced by the chan- 
cery courts of England and this country. The use of a 
trade-mark is to distinguish one's goods. No man has a 
right to use or imitate the trade-mark of another, and 
thus represent his goods as the goods of another. How- 
ever broad the field of competition, it does not include the 
use of a rival's trade-mark, either directly or covertly, for 
the purpose of deceiving the public, and marketing his 
own goods as those of his rival. The one question of fact 
in this case is whether the "Factory Seal" trade mark, 
when printed in white letters upon a red label with clip- 
ped corners, and applied to the ends of cartons containing 
bakery products, bears such a resemblance to the "In-er- 
seal" trade-mark, when similarly applied, as to deceive 
the ordinary purchaser, and lead him to believe he is pur- 
chasing the goods of the National Biscuit Company, when 
in fact he is getting the goods of the Ohio Baking Com- 
pany. McLean v. Fleming, 96 U. S, 255, 24 L. Ed. 828; 
Manufacturing Co. v. Trainer, 101 U. S. 65, 25 L. Ed., 993 ; 
Coats v. Merrick Thread Co., 149 U. S. 562, 13 Sup. Ct, 
966, 37 L. Ed., 847. We have made a careful inspection of 
the cartons and trade-marks of the respective companies, 
and are satisfied not only that the "Factory Seal" trade- 
mark as applied is calculated to mislead and deceive the 
ordinary purchaser, but that it was designed, adopted, and 
used for that purpose. Its use was a part of the "cracker 
campaign" planned in advance. The National Biscuit 
Company's crackers were the only ones with a red seal on 
the end of the cartons. The defendants below knew this. 
And they knew also that crackers are sold for the most 
part over the counter to careless buyers, who are not apt 
to examine the carton carefully, but likely to carry in 



46 NATIONAL BISCUIT COMPANY vs. OHIO BAKING COMPANY 

iniii d some one distinguishing featnre, such as a red seal 

on the ends. The crackers of the National Biscuit Com- 
pany are put out under many names. Thus the plant at 
lo was called the Worts-Kirk-Bigelow plant, one at 
Chicago the Kennedy, another the Bremner, and so on. 
The name of the factory would mean nothing, the] res- 
ence of the red seal everything to the servant girl or child 
sent to the grocery for a box of "ln-er-seal" crack 
The careless purchaser asking for a box "of those red 
seal crackers" would take the "Factory Seal" g wis, 
thinking he was getting the "In-er-seal" goods. 

But it is insisted that this is a suit on a registered 
tra e-mark. and that a trade-mark cannot be extended 
yond the limits fixed in the registration. This is not. how- 
ever, a suit on a registered trade-mark. Neither the alle- 
gations nor the proof would entitle the complainant to re- 
lief under the federal act. Tl" . J t s trie u H- 
< ;-.. 191 T. $.. 195. 2± Sup. Ct.. 79. 4S L. Ed.—. There is 
no evidence showing that the trade of the National Biscuit 
Company with foreign countries was injured by the acts 
complained of. The ground of the relief sought is unfair 
competition in domestic commerce — the fraudulent imita- 
tion of the complainant's trade-mark and cartons for use 
in local trade. Conceding, as Mr. Justice Fuller says, in 
TT ~ " I Co. v. Watch Case Co., 179 U. S., 666, 674. 21 Snp. 
Ct.. 270, 45 L. E L, 365, that in this class of cases '"such 
circumstances must be made out as will show wrongful in- 
tent in fact, or justify that inference from the inevitable 
consequences of the act complained of," they are present 
in am})le measure in the record. The trade-mark which 
the court is asked to protect is therefore, so far as this 
suit is concerned, a common-law trade-mark, and its 
limits are to £ermined by its application and use. As 
Mr. Justice Shiras said in Kohler Mfg. C . v. Bet ?1 
59 Fed.. 572. 575, 5 C. C. A.. 215, 21$: "We are not will- 



NATIONAL BISCUIT COMPANY vs. OHIO BAKING COMPANY 



47 



ing to affirm the proposition that the registration in the 
Patent Office of a certain name or phrase as a trade-mark 
* - * * w in in all cases prevent or estop the owner from 
adopting and using another name or phrase as a trade- 
mark. " The legal effect of the registry of a trade-mark 
being restricted to foreign commerce and that with the 
Indian tribes, it would seem that as to domestic com- 
merce a person might adopt and use a different trade- 
mark than that registered. Now, the trade-mark actually 
used — the "In-er-seal" trade-mark, as known to the pub- 
lic — was printed in white letters upon a vivid red back- 
ground of a peculiar shade. Before the defendants began 
to place their goods upon the market, this vivid red color 
had become associated with the "In-er-seal" trade-mark. 
The defendants below knew this when they put their 
"Factory Seal" trade-mark upon the vivid red back- 
ground of precisely the same shade. While it is true no 
one has the right to monopolize a particular color, yet the 
courts have repeatedly held that a person may be re- 
strained from using a particular color, in combination 
with other things, to mislead the public, and market his 
goods as those of another. Garrett v. T. H. Garrett & Co., 
78 Fed., 472, 24 C. C. A., 173; Fairbank Co. v. Bell Mfg. 
Co., 77 Fed., 869, 23 C. C. A., 554; Hires Co. v. Consumers' 
Co., 100 Fed., 809, 41 C. C. A., 71; Morgan Co. v. Whittier 
Co. (0. C), 118 Fed., 657; Cohen v. Delavina (C. C), 104 
Fed. 946. We are satisfied that the "Factory Seal" trade- 
mark, when printed on the vivid red background and ap- 
plied to the ends of a cracker or biscuit carton, is an in- 
fringement of the "In-er-seal" trade-mark, and should 
be enjoined. 

Tt is submitted that the decree of the Circuit Court en- 
joining the use of any imitation of the " [n-er-seal n trade- 
mark is inconsistent with the order of this court revers- 
ing the first part of Judge Wanty's restraining order re- 



48 NATIONAL BISCUIT COMPANY vs. OHIO BAKING COMPANY 

specting the trade-mark. But Judge Wanty's order re- 
strained the use of the kk Factory Seal" trade-mark in any 
manner whatsoever in connection with biscuit or cracker 
cartons, while the decree of the Circuit Court provides 
that it may be used when so differentiated in general ap- 
pearance and application from the "In-er-seal" trade- 
mark as not to be calculated to deceive the ultimate ordi- 
nary purchaser. So that in affirming this decree, it is not 
necessary to prohibit the use in any manner whatsoever 
of the "Factory Seal" trade-mark, but only its use in a 
way calculated to mislead and deceive. 

But, however this may be, the case is now before us 
upon the merits, which we have carefully examined, and 
we are satisfied that the manner in which the "Factory 
Seal" trade-mark has been used is calculated to mislead 
and deceive, and constitutes an infringement of the "In- 
er-seal" trade-mark. 

The judgment of the Circuit Court is affirmed. 
127 Fed. Rep., 116. 



&ttprMtt* (Hanrt at % MnxUb States 



Octobek Teem, 1904 



OHIO BAKING COMPANY, STEPHEN C. 
MORRIS and GEORGE E. COLLINGS, 

Petitioners, 



NATIONAL BISCUIT COMPANY 

Respondent. 



No. 382 



PETITION FOR WRIT OF CERTIORARI 
AND ORDER DENYING PETITION 



THOMAS A. BANNING 
EPHRAIM BANNING 

For Petitioners. 

CHARLES K. OFFIELD 
EARL D. BABST 

For Respondent. 



national biscuit company vs. ohio baking company 51 

Supreme Court of the United States. 
October Term, A. D. 1904. 



On Petition for Writ of 
Certiorari directed to 
the United States Cir- 
cuit Court of Appeals 
for the Sixth Circuit. 



The Ohio Baking Company, 
Stephen C. Morris and George 
E. Collings, 

Petitioners, 
vs. 
National Biscuit Company, 
Respondent. 

PETITION FOR WRIT OF CERTIORARI. 



To the Honorable the Chief Justice and Associate Jus- 
tices of the Supreme Court of the United States: 

The petition of the Ohio Baking Company, a corpora- 
tion organized and existing under and by virtue of the 
laws of the State of Ohio, and Stephen C. Morris, treas- 
urer and general manager of said company, and George 
E. Collings, president of said company, respectfully 
represents and shows unto your Honors as follows : 

1. That about the 1st day of March, 1900, the Na- 
tional Biscuit Company adopted what is generally known 
as its "Iner Seal" trade-mark — being the misspelled 
words " inner seal," indicating that the package was 
sealed on the inside, and a purely arbitrary figure or de- 
sign — for use on various kinds of bakery products in- 
cluding biscuits, crackers, wafers, cakes, bread, snaps, 
jumbles, etc. The trade-mark has usually been printed 
on seals or labels which have boon applied to the boxes, 
packages or cartons in which the goods were put up for 
the market. This seal or label has usually been applied 
to the end of the carton or package. The trade-mark has 
been printed on orange, green or red colored seals or 



52 NATIONAL BISCUIT COMPANY vs. OHIO BAKING COMPANY 



labels. The trade-mark printed on one of the red end 
labels or seals appears as follows : 




2. That in the bill of complaint charging infringe- 
ment of the complainant's "Iner Seal" trade-mark, in 
the fourth paragraph of the bill, the characteristics, 
peculiarities, and distinguishing things and features of 
such "Iner Seal" trade-mark are stated and alleged to 
be the following: 

"An oval-shaped figure separated centrally and hor- 
izontally in the direction of its greatest length by a bar, 
from which there rises centrally and at right angles 
thereto a perpendicular bar, which near its upper end is 
intersected by double horizontal cross-bars, thus forming 
what might be designated as a " double-T-shaped" figure 
or cross tree, while within said oval-shaped section and 
above the horizontal dividing-bar and to the left of the 
perpendicular intersecting bar appear the letters "I X" 
and on the opposite side of said perpendicular intersect- 
ing bar and above said horizontal division-bar appear the 
letters "E E" the lower section of said oval-shaped 
figure having therein the word ' ' Seal. ' ' 

3. That the National Biscuit Company, registered its 



NATIONAL BISCUIT COMPANY vs. OHIO BAKING COMPANY 



53 



"Iner Seal" trade-mark in the Patent Office, the certifi- 
cate of registry being dated September 18, 1900, and num- 
bered 35,108, on an application filed May 12, 1900. The 
certificate of registry of such trade-mark will be found in 
the Record, following page 160. In the specification of 
such registration, which was sworn to, the National Bis- 
cuit Company stated the things in which the trade-mark 
consisted as follows : 

"Said trade-mark consists of an arbitrarily selected 
design or symbol representing an oval-shaped figure sep- 
arated centrally and horizontally in the direction of its 
greatest length by a bar, from which there rises centrally 
and at right angles thereto a perpendicular bar, which 
near its upper end is intersected by double horizontal 
cross-bars, thus forming what might be designated as a 
"double-T-shaped" figure or cross-tree, while within said 
oval-shaped section and above the horizontal dividing-bar 
and to the left of the perpendicular intersection bar ap- 
pear the letters "I N" and on the opposite side of said 
perpendicular intersecting bar and above said horizontal 
division-bar appear the letters "E R" the lower section 
of said oval-shaped figure having therein the word ' ' Seal. ' ' 

And afterwards in said specification, after stating that 
the trade mark was not confined to the size of the end 
labels, nor to their application to the end of the package, 
nor to the shape of the label, nor to the size of the letters 
and figures, nor to the color of the letters and figures, nor 
to the color of the label or background, nor to the style 
of the letters, nor to the color of the border of the figure 
or the bars, nor to a white color for the letters or bars, the 
National Biscuit Company declared the real and essentia] 
features of the trade-mark in the following words : 

"The essential and paramount feature of said trade- 
mark consisting of an oval-shaped figure divided centrally 
and horizontally in the direction of its greatesl length 
by a bar from which extends a perpendicular bar which 
is intersected near its upper end by two horizontal cross 



54 NATIONAL BISCUIT COMPANY vs. OHIO BAKING COMPANY 

bars, while within said oval-shaped figure and above said 
central horizontal bar appear the letters "I N" and 
"E R," while below said horizontal dividing-bar appears 
the word k 'Seal." 

4. That about the 1st day of August, 1900, your peti- 
tioner, the Ohio Baking Company, adopted what is gen- 
erally known as its "Factory Seal" trade-mark, consist- 
ing of the monogram word "Ohio," being the designating 
or localizing word of its corporate name. The words 
"factory seal" indicate that the package was filled and 
sealed at the factory so as to place responsibility in case 
the goods are found defective. The trade-mark has usu- 
ally been applied to cartons or packages containing bakery 
products by printing it upon the end seals. The founda- 
tion color of these end seals or labels from the commence- 
ment has been red. A sample of such end seals is sub- 
mitted as follows : 




NATIONAL BISCUIT COMPANY vs. OHIO BAKING COMPANY 



55 



5. That your petitioner, the Ohio Baking Company, 
also registered its "Factory Seal" trade-mark in the Pat- 
ent Office, the certificate of registry being dated Decem- 
ber 18, 1900, and numbered 35,597, on an application filed 
October 9, 1900. The certificate of registry of such trade- 
mark will be found in the back of the record. 

6. That in December, 1900, the National Biscuit Com- 
pany filed its bill of complaint in the United States Cir- 
cuit Court for the Northern District of Ohio, Eastern 
Division, charging your petitioners with infringement of 
its "Iner Seal" trade-mark, applied to packages and car- 
tons of crackers and bakery products, by the use, by 
the Ohio Baking Company, of its "Factory Seal" trade- 
mark, the monogram word "Ohio," as shown in the sam- 
ple above. 

7. That in January, 1901, a preliminary injunction 
order was entered by his Honor, Judge George P. Wanty, 
restraining your petitioners, first, "from applying or 
using complainant's 'Iner Seal' trade-mark, in any man- 
ner whatsoever, upon or in connection with bakery prod- 
ucts," as shown in certain infringing packages 1, 2 and 
3; and, secondly, from putting up or selling cartons or 
packages like the packages 1, 2 and 3 or others "which 
shall, by reason of the collocation of size, shape, colors, 
lettering, spacing and ornamentation, present a general 
appearance closely resembling complainant's several ex- 
hibits respectively" as did the packages 1, 2 and 3, but 
at the same time the order provided that "this shall not 
be construed as restraining defendants from selling pack- 
ages or cartons of the size, weight and shape of complain- 
ant's packages, nor from using the respective colors as 
wrappers for such packages, provided such packages are 
so differentiated in general appearance from said com- 
plainant's respective packages that they are not calcu- 
lated to deceive the ultimate ordinary purchaser.*' ( Rec- 
ord, 141-2.) 



56 



NATIONAL BISCUIT COMPANY vs. OHIO BAKING COMPANY 



8. That an appeal was taken from the injunction or- 
der entered by Judge Wanty on an assignment of errors, 
appearing at page 143 of the record, which appeal was 
argued in the United States Circuit Court of Appeals for 
the Sixth Circuit in due course, resulting in an order By 
said Court of Appeals reversing the decree of Judge 
"Wanty, so far as the infringement of the trade-mark was 
concerned, but affirming his decision so far as simulating 
complainant's wrappers was concerned. In accordance 
with such order, a mandate was issued and filed in the 
court below on the 24th day of June, 1901, as and for its 
judgment in the case. (Record, 117.) 

9. That from the entry of the order of injunction by 
Judge Wanty until the 21th day of June, 1901, when 
the mandate was filed in the court below, your petitioner, 
the Ohio Baking Company, discontinued the use of its 
end seals containing its trade-mark — the monogram 
word "Ohio" — but when the mandate was filed on 
the 21th of June, 1901, it again began to use the same 
trade-mark — the monogram word "Ohio" — on its end 
labels precisely the same in every respect as it had used 
them before the decision of Judge Wanty; but it used 
such end labels and trade-marks on packages differing in 
the coloring and ornamentation of their wrappers from 
the original packages 1, 2 and 3, which had been enjoined. 
This was the only change made — the change in the wrap- 
pers. 

10. That thereupon the National Biscuit Company 
moved before his Honor Judge Henry F. S'everens, who 
was one of the judges who had heard and decided the 
case in the Court of Appeals, to have your petitioners at- 
tached for contempt of court ; and the charge and denial 
of contempt were argued before him, and on the 21th 
day of August, 1901, an order was entered by him dis- 
charging the rule to show cause, etc. The opinion of 
Judge Severens will be found at page 149 of the Eecord, 



NATIONAL BISCUIT COMPANY vs. OHIO BAKING COMPANY 



57 



and the order entered under such opinion will be found 
at page 150. 

11. That thereupon proof for final hearing was taken 
by the parties respectively and the cause brought on for 
argument before his Honor Judge Francis J. Wing, on 
the 27th day of March, 1903. Judge Wing ordered a 
decree to be entered against your petitioners both as to 
the infringement of the trade-mark and as to the simu- 
lation of the wrappers of the cartons or packages. This 
decree was entered on the 22nd day of May, 1903, and 
will be found beginning at page 153 of the Record. A 
perpetual injunction was granted restraining your peti- 
tioners both as to the trade-mark and as to the simula- 
tion, and the case referred to a Master for an assessment 
of damages and profits. 

12. That your petitioners thereupon prayed an appeal 
from the order and decision of Judge Wing to the 
United States Circuit Court of Appeals for the Sixth 
Circuit, in which court the appeal was duly argued, and 
on or about the 21st day of January, 1904, decided by 
said court, affirming Judge Wing's decision. (Rec, 170; 
127 Fed. Rep., 116.) 

13. That your petitioner attach hereto and submit here- 
with, as a part hereof, a certified printed copy of the 
record and the opinion of the United States Circuit Court 
of Appeals affirming the decision of Judge Wing, as the 
same are on file in the office of the clerk of the United 
States Circuit Court of Appeals for the Sixth Circuit. 

14. That your petitioners hare been aggrieved, and. 
as they believe, a miscarriage of justice has beat caused 
in this case: 

By the confusion info which I he Circuit Court and the 
Court of Appeals appear to hare fatten as to the lair 
relating to trade-marks proper and the law governing 
unfair competition; 



58 



NATIONAL BISCUIT COMPANY VS. OHIO BAKING COMPANY 



By the conclusion of the Court of Appeals that the 
suit was not founded on the complainant's registered 
trade-mark, and, therefore, not subject to the same rides 
of construction as govern registered trade-marks ; 

By giving to the complainant's "Iner Seal" trade- 
mark, both in the Circuit Court and in the Court of Ap- 
peals, a broader construction than the complainant's 
pleadings and registration justified, inasmuch as the bill 
of complaint and the registration both stated that it con- 
sisted in certain things and features; 

By apparently considering that the bill was for un- 
fair competition in trade rather than for infringement 
of a technical trade-mark, and yet enjoining your peti- 
tioners as for the infringement of a technical trade-mark; 

By protecting the complainant in the use of its trade- 
mark when "printed in white letters upon a vivid red 
background of a peculiar shade,'' notwithstanding the 
statements of the complainant's registration that the 
color of the end labels or seals ivas immaterial; 

By giving the complainant a practical monopoly of 
the color red as a background for end seals or labels; 

By finding infringement of the "Iner Seal" trade- 
mark because the "Factory Seal" trade-mark teas print- 
ed in white letters on a red background ; 

By protecting the complainant in the use of red for 
its end seals or labels notwithstanding it was not using 
red end seals exclusively at the time the Ohio Baking 
Company began to use red end seals or labels, but ivas 
using other colors as well; 

By not holding that the complainant had aisentitled 
itself to relief in equity for unfair competition in view 
of the evidence that it had adopted "substantially all col- 
ors" (Q. 24, Bee. 13) for the wrappers of its cartons or 
packages, thus seeking to monopolize all colors; 

By holding that the "Factory Seal" trade-mark when 



NATIONAL BISCUIT COMPANY vs. OHIO BAKING COMPANY 59 

printed on a red background and applied to the ends of 
cracker or biscuit cartons was an infringement of the 
"Iner Seal" trade-mark, thus attaching importance to 
the color of the background on the trade-mark branch of 
the case; 

By attaching importance in the trade-mark branch of 
the case to the manner in which the "Factory Seal" 
trade-mark had been used; 

By holding that there had been an improper simula- 
tion of the complainant's wrappers in view of the fact 
that the complainant, in order to match up the color and 
appearance of the defendant's packages 1, 2 and 3, held 
to be an improper simulation, was obliged to bring in 
packages from its Chicago and Toledo factories; 

By holding that the "careless purchaser asking for a 
box 'of those red seal crackers' would take the 'Factory 
Seal' goods, thinking he was getting the 'Iner Seal' 
goods," thus making the action of a careless person in- 
stead of an ordinary purchaser determinative of the 
probability of deception; 

By disregarding the fact that the red color, white fig- 
ures and letters, clipped corners, size of seal, etc., were 
shown by the evidence to be matters of utility instead 
of mere fanciful or arbitrary features; 

By applying the abstract principle "that as to do- 
mestic commerce a person might adopt and use a differ- 
ent trade-mark than that registered" to this case where 
the complainant has not adopted and lias not used a 
"different" trade-mark, but identically the one regis- 
tered; and 

By affirming the decision of Judge Wing and in not 
reversing such decision. 

Wherefore, your petitioners pray that this Honor- 
able Court will take cognizance of the matters herein 
sot forth and referred to and will grant unto your peti- 
tioners a writ of certiorari requiring said cause and the 



60 NATIONAL BISCUIT COMPANY vs. OHIO BAKING COMPANY 

record thereof to be certified to it by the United States 
Circuit Court of Appeals for the Sixth Circuit, for its 
review and determination, pursuant to the provisions of 
the statute in such case made and provided, and that your 
petitioners may have such other and further relief in 
the premises as the nature and circumstances of their 
case may require. 

And your petitioners will ever pray, etc. 

The Ohio Baking Co., 

GEORGE E. CoLLINGS, 

Stephen C. Morris. 



United States of America, Northern District of Ohio, 
State of Ohio, Cuyahoga County , ss : 

George E. Collings, president of the Ohio Baking- 
Company, one of the above named petitioners, being duly 
sworn, upon oath says that he has read the foregoing 
petition and knows the contents thereof and that the 
same is true in substance and matter of fact. 

George E. Collings. 

Subscribed and sworn to before me this 2nd day of 
September, 1904. 

F. T. Sholes, 
(seal) Notary Public. 

We hereby certify that the foregoing stated grounds 
in support of the petition for a writ of certiorari in the 
above entitled cause, are, in our opinion, well founded 
in point of law. 

Thomas A. Banning, 
Ephraim Banning, 
Counsel for Petitioners. 



NATIONAL BISCUIT COMPANY vs. OHIO BAKING COMPANY 61 



ORDER- DENYING PETITION. 

Supreme Court of the United States. 

No. 382, October Term, 1904. 

The Ohio Baking Company et ah, "" 
Petitioners, 
vs. 
National Biscuit Company 

On petition for writ of certiorari to the United States 
Circuit Court of Appeals for the Sixth Circuit. 

On consideration of the petition for a writ of certiorari 
herein to the United States Circuit Court of Appeals for 
the Sixth Circuit, and of the argument of counsel there- 
upon had, as well in support of as against the same, It 
is now here ordered by the Court that said petition be, 
and the same is hereby denied. 

October 17, 1904. 

A true copy. 
Test: James H. McKenney, 

Clerk of the Supreme Court of the United States. 




195 T. S., 630. 



§t0trtrt (Eourt of % Wnxteb Butts 

Northern District of Ohio 
Eastern Division 



NATIONAL BISCUIT COMPANY 

Complainan t. 



THE OHIO BAKING COMPANY, STEPHEN 
C. MORRIS and GEORGE E. COLLINGS, 

Defendants. 



IN EQUITY- 



ORDER FOR FINAL DECREE 



OFFIELD, TOWLE, GRAVES & OFFIELD 
EARL D. BABST 

For Complainant. 

KLINE, CLEVENGER, BUSS & HOLLIDAY 

For Defendants. 



NATIONAL BISCUIT COMPANY vs. OHIO BAKING COMPANY t>0 

ORDER FOR FINAL DECREE. 

The United States of America,! 
Nokthekn District of Ohio, j-ss. 
Eastern Division. J 

At a stated term of the District Court of the United 
States, within and for the Eastern Division of the North- 
ern District of Ohio, begun and held at the City of Cleve- 
land, in said District, on the first Tuesday in October, 
being the 7th day of said month, in the year of our Lord 
one thousand nine hundred and thirteen, and of the In- 
dependence of the United States of America, the one 
hundred and thirty-eighth, to-wit: on Monday, the 3rd 
day of November A. D. 1913. 

Present : — Honorable William L. Day, United States 
District Judge. 

Among the proceedings then and there had were the 
following, to-wit : 

National Biscuit Company 

vs. r No. 5. Equity. 

The Ohio Baking Company et al. J 

Pursuant to stipulation filed by counsel in this cause, 
It is ordered, that the defendants having made settle- 
ment of all claims for profits, damages and costs and 
otherwise, arising hereunder, the reference to the Mas- 
ter shall be withdrawn, and the interlocutory decree here- 
tofore entered in this cause be made final, such decree 
having been affirmed by the United States Circuit Court 
of Appeals for the Sixth Circuit, upon appeal, and the 
Supreme Court of the United Stales having refused \o 
disturb said decree upon certiorari petition filed by de- 
fendants; and it is further ordered thai the plaintiff shall 
pay all costs herein, as taxed by the Court, now remain- 
ing unpaid. 



66 



NATIONAL BISCUIT COMPANY vs. OHIO BAKING COMPANY 



The United States of America,! 
northern district of ohio, y ss. 
Eastern Division. J 



I, B. C. Miller, Clerk of the District Court of the 
United States, within and for said District, do hereby 
certify that I have compared the within and foregoing- 
transcript with the original i ' Order for Final Decree ' ' en- 
tered upon the Journal of the proceedings of said Court 
in the therein entitled cause, at the term, and on the day 
therein named; and do further certify that the same is 
a true, full and complete transcript and copy thereof. 

Witness, my official signature, and the seal of said 
Court at Cleveland, in said District, this 5th day of No- 
vember, A. D. 1913, and in the 138th year of the Inde- 
pendence of the United States of America. 

B. C. Miller, 

Clerk. 
By Anna H. Elliott, 

Deputy Clerk. 




(Etmrit Court of tlje Ittttrn States 



Western District of New York 



NATIONAL BISCUIT COMPANY 

Complainant, 



WILLIAM DEININGER, HENRY E. DEIN= 
INGER, LOUIS C. DEININGER and 
FREDERICK C. J. DEININGER, co= 
partners, and doing business under the 
firm name and style of DEININGER 

BROTHERS, 

Defendants. 



IN EQUITY 



DECREE AND INTUNCTION 



CHARLES K. OFFIELD 
ADELBERT MOOT 
EARL D. BABST 

For Complainant. 

FREDERICK F. CHURCH 

For Defendants. 



r^ \a N - MIPANY - DETNTS 





Final Decree. 



NATIONAL BISCUIT COMPANY vs. DEININGER 69 

FINAL DECREE. 

United States Circuit Court. 
Western District of New York. 

National Biscuit Company, 
vs. 
William Deininger, Henry E. 
Deininger, Louis C. Deininger, 
and Frederick C. J. Deininger, 
copartners and doing business 
under the firm name and style 
of Deininger Brothers. 

This cause coming on to be heard upon the pleadings 
as filed, Mr. Charles K. Offield appearing in behalf of 
the complainant and Mr. Frederick F. Church in behalf 
of defendants, and it appearing to the Court that said 
defendants do not desire further to contest or defend 
this action, but admit the truth of the allegations in the 
bill of complaint ; and the said defendants have tendered 
and paid the costs to the date of this cause as taxed by 
the clerk, and also have settled and paid the damages 
caused to complainant by the commitment of the un- 
lawful acts as set forth in the bill of complaint; and 
that no remaining question is presented except the mat- 
ter relating to the granting of an injunction. It is there- 
fore ordered, adjudged and decreed that an injunction 
issue under and in accordance with the allegations of, 
and the prayer of, the bill of complaint filed herein, and 
that this decree and order be, and is final. 

John R. I Iazel, 

r. s. ./. 

Endorsed: Circuit Court of U. S., Western Dist. oi' 
N. Y., National Biscuit Company agst William Deininger 
et al. Final Decree. Adelberl Moot, Counsel for plain- 
tiff, 45 Erie County Savings Bank Building, Buffalo, 
N. Y., TT. S. Circuit Court, Western Dist. of X. V. Piled 
Jul. 30, 1901. Harris S. Williams, Clerk. 



70 



NATIONAL BISCUIT COMPANY vs. DEININGER 



United States of America, } gg 
[Western District of New York. J 

I, Harris S. Williams, Clerk of the Circuit Court of the 
United States, for the Western District of New York, do 
hereby certify that I have compared the annexed copy of 
Final Decree in re National Biscuit Company vs. Will- 
iam Deininger et al. with the original entered and on file 
in this office, and that the same is a correct transcript 
therefrom, and of the whole of said original. 

And I further certify that I am the officer in whose 
custody it is required by law to be. 

In Testimony Whereof, I have caused the seal of the 
said court to be affixed at the City of Buffalo, in said 
District, this 27th day of May, A. D. 1904. 

Harris S. Williams, 

Clerk. 




NATIONAL BISCUIT COMPANY VS. DEININGER 



71 





72 NATIONAL BISCUIT COMPANY VS. DEININGER 



INJUNCTION. 



United States of America, } 
Western District of New York.J s * 

The President of the United States, to William Deininger, 
Henry E. Deininger, Louis C. Deininger and Frederick 
C. J. Deininger, and each of them, and their and each of 
their servants, agents, and employes and all claiming or 
holding through or under them, Greeting: 

Whereas, tlie National Biscuit Company lias lately ex- 
hibited its bill of complaint against the said William Dein- 
inger, Henry E. Deininger, Louis C. Deininger and Fred- 
erick C. J. Deininger, copartners and doing business 
under the firm name of Deininger Brothers, as defend- 
ants, in the Circuit Court of the United States for the 
Western District of New York, before the Judges of said 
Court, praying to be relieved touching the matters there- 
in complained of; and 

Whereas, by a final decree of said court made on the 
30th day of July, 1901, it was ordered that a writ of in- 
junction issue under the seal of said Court under and in 
accordance with the allegations of, and the prayer of 
said bill of complaint. 

Now, Therefore, in consideration of the premises you, 
the said William Deininger, Henry E. Deininger, Louis C. 
Deininger and Frederick C. J. Deininger, and each of you, 
and your, and each of your, servants, agents and em- 
ployes, and all claiming or holding through or under you 
or them, are hereby strictly commanded and enjoined 
under the pains and penalties which may fall upon you 



NATIONAL BISCUIT COMPANY vs. DEININGER 



73 



and each of you in case of disobedience, that you and each 
of you, do absolutely desist and abstain, forthwith and 
forever, from the manufacture, use or sale of bakery 
products containing the complainant's ribbon-tying trade- 
mark, label, and design, upon any carton for bakery 
products having a wrapper or label thereon simulating 
the ribbon-tying design and effect disclosed by complain- 
ant's wrapper and label, and do absolutely de- 
sist and abstain forthwith and forever from man- 
ufacturing, using or selling labels or cartons in, 
or for, or with, bakery products containing the 
red end seal, sign or symbol of complainant, hav- 
ing therein circular and straight white lines ar- 
ranged practically at right angles to each other; and 
from in any manner whatsoever, handling, advertising, 
or selling bakery products or packages containing there- 
on complainant's trade-marks or imitation or simulation 
thereof, or from using complainant's said trade-marks or 
packages or any imitation thereof upon any wrapper, 
package, box or carton, or by any means that may be 
adopted in the sale of their bakery products of any de- 
scription; or any imitation of complainant's said trade- 
marks or packages, labels or wrappers that may be in 
any way calculated to deceive or mislead, and otherwise 
do absolutely desist and abstain, forthwith and forever, 
in every way, from fraudulently using complainant's 
trade-marks, packages, labels or wrappers, or any imita- 
tion or simulation thereof, in the sale of bakery products, 
or from violating or infringing the equitable rights of 
complainant in the premises herein complained of and 
set forth. 

Witness the Honorable Melville \Y. Puller, Chief 
Justice of the United States of America, ai the City o\' 
Buffalo, N. Y., in said district, this 5th day o\' February, 



74 



NATIONAL BISCUIT (OMPANY 



DEININGER 



one thousand nine hundred and two, and of our Independ- 
ence, the one hundred and twenty-sixth. 

Harris S. Williams, 

Clerk. 




Qffield, Towle & LlNTBICTJM, 

Solicitors for Complainant. 



United States of America, | 
Western District of New York.\ 



ss. 



I, Harris S. Williams, clerk of the Circuit Court of the 
United States, for the Western District of New York, do 
hereby certify that I have compared the annexed copy of 
Injunction in re National Biscuit Co. vs. William Dein- 
inger et ah with the original entered and on file in this 
office, and that the same is a correct transcript therefrom, 
and of the whole of said original. 

And I further certify that I am the officer in whose cus- 
tody it is required by law to be. 

In Testimony Whereof, I have caused the seal of the 
said court to be affixed at the City of Buffalo, in said Dis- 
trict, this 27th day of May, A. D. 1904. 

Harris S. Williams, 
Cleric. 




(Etrnrit dourt of the Untteo States 

Northern District of Illinois 



Northern Division 



NATIONAL BISCUIT COMPANY 

Complainant, 
vs. 

DAKE CRACKER COMPANY, J. A. BER= 

NARD HOSSACK, WILLIAM P. FEN= 

NELL and ABEL L. ALLEN, 

Defendants. 



IN EQUITY 



OPINION, INJUNCTION AND ORDER 
MAKING INJUNCTION PERPETUAL 



OFFIELD, TOWLE & LINTHICUM 
EARL D. BABST 

For Complainant. 

W. P. FENNELL 

For Defendants. 



NATIONAL BISCUIT COMPANY vs. DAKE CRACKER COMPANY I ( 



OPINION. 

In the United States Circuit Court/I 

Northern District of Illinois, iNo. 26,043. 
Northern Division. J 

KOHLSAAT, District Judge. 

This matter comes on for hearing upon complainant's 
motion for a preliminary injunction restraining defend- 
ant corporation and the individual defendants from the 
use of the word "Dake" either alone or in connection 
with other words, upon or with reference to crackers or 
other bakery products. 

I am of the opinion that the moving papers establish 
the property right in complainant to the use of the word 
"Dake" in connection with bakery products. Several de- 
fenses are interposed among which is that of abandon- 
ment. This I consider an affirmative defense, the burden 
of establishing which is upon defendants. The affidavits 
on this point are conflicting, but I deem the showing as 
to continued, though diminished, use by complainant, not 
overcome by defendants' affidavits. 

The other defenses I do not think available. 

A preliminary injunction may be entered, restraining 
defendants from using the word "Dake" in connection 
with bakery products, either alone or with prefixes or 
suffixes. 

See International Silver Co. v. Rogers Co. et ah, 110 
Fed., 955. 

(Endorsed) Filed May 25, 1904, Marshall E. Samp- 
sell, Clerk. 



78 NATIONAL BISCUIT COMPANY vs. DAKE CRACKER COMrANY 



Northern District of Illinois, ( 

Northern Division. \ ss - 

I, Marshall E. Sampsell, Clerk of the Circuit Court of 
the United States for said Northern District of Illinois, 
do hereby certify the above and foregoing to be a true 
and complete copy of the Opinion, filed in said Court on 
the 25th day of May A. D. 1904, in the cause wherein Na- 
tional Biscuit Company is the complainant and Dake 
Cracker Co. et al. are the defendants as the same ap- 
pears from the original records thereof now remaining 
in my custody and control. 

In Testimony whereof, I have hereunto set my hand 
and affixed the seal of said Court at my office in Chicago, 
in said District, this 26th day of May, A. D. 1904. 

Marshall E. Sampsell, 
Clerk. 




NATIONAL BISCUIT COMPANY vs. DAKE CRACKER COMPANY 



79 



INJUNCTION. 

Circuit Court of the United States of America,! 

Northern District of Illinois, fss. 

Northern Division. J 

THE UNITED STATES OF AMERICA, 

To Bake Cracker Company, a corporation, and J. A. 
Bernard Hossack, William P. Fennell and Abel L. Al- 
len, doing business jointly with and as officers and man- 
agers of Bake Cracker Company, and to your Coun- 
selors, Attorneys, Solicitors, Trustees, Agents, Clerks, 
Employes, Servants and Workmen, and to each and 
every of you, Greeting : 

Whereas, it hath been represented to the Judges of 
our Circuit Court of the United States for the Northern 
Division of the Northern District of Illinois in Chancery 
sitting-, on the part of National Biscuit Company, com- 
plainant in its certain bill of complaint, exhibited in our 
said Circuit Court, on the Chancery side thereof, before 
the Judges of said Court, against you, the said Dake 
Cracker Company, a corporation, and J. A. Bernard Hos- 
sack, William P. Fennell and Abel L. Allen, doing* busi- 
ness jointly with and as officers and managers of Dake 
Cracker Company, to be relieved touching' the matters 
complained of. In which said bill it is stated, among 
other things, that you are combining and confederating 
with others to injure the complainant touching the mat- 
ters set forth in said bill, and that your actings mid 
doings in the premises arc contrary to equity and good 
conscience. And it being ordered that a Writ of Pre- 
liminary Injunction issue out of said Court, upon said 
bill, enjoining and restraining yon, and each of you, as 
prayed for in said bill; We, therefore, in consideration 



SO NATIONAL BISCUIT COMPANY v». DAK!! CBACKEB COMPANY 

thereof, and of the particular matters in said bill set forth, 
do strictly command you. the said Dake Cracker Company. 
a corporation, and J. A. Bernard Hossack, William P. 
Fennell and Abel L. Allen, doing business with and as of- 
- and managers of Dake Cracker Cumpany. your 
Counselor-. Attorneys, Solicitor.-. Trustees. Agents, 
Clerks. Employes, Servants and Workmen, and each and 
ev^ry of you. that yon do absolutely desist ajnd refrain 
from in any manner whatsoever, manufacturing, han- 
dling, using, selling or advertising the bakery products 
all packages containing thereon, or in connection there- 
with your orator's said trade-niark or name, or any imita- 
tion or simulation thereof: also, from using your orator's 
trade name or mark on any package of any description, 
or any simulation or imitation thereof, upon any wrapper, 
box, carton, or barrel, or by any means whatsoever that 
may be adopted in the sale of bakery products of any 
description, that may Vie in any way calculated to de- 
ceive and otherwise enjoining and restraining in every 
way the said defendant from fraudulently nsing said 
trade-mark, or trade name, or any simulation or imita- 
tion thereof in the manufacture, use or sale of bakery 
products, or from violating or infringing the equitable 
rights of yonr orator in the premises herein complained 
of and set forth, or from nsing the word "Dake" in con- 
nection with bakery prodncts, either alone or with pre- 
fixes or suffixes, until this Honorable Court, in Chancery 
sitting, shall make other order to the contrary. Hereof 
fail not. under the penalty of what the law directs. 

To the Marshal of the Xorthem District of Illinois, 
to execute and return in due form of law. 

Witness The Hoir. Melville TV. Fuller. Chief Justice 

of the United States of America, at Chicago, in said Dis- 
trir-t. this 30th dav of December, in the vear of our Lord 



NATIONAL BISCUIT COMPANY vs. DAKE CRACKER COMPANY 



81 



one thousand nine hundred and one and of our In- 
dependence the one hundred and twenty-sixth year. 

S. W. Burnham, 

Clerk, 




Northern District or Illinois,! 



Northern Division. 



ss. 



I, S. W. Burnham, Clerk of the Circuit Court of the 
United States, for said Northern District of Illinois, do 
hereby certify the above and foregoing to be a true and 
complete copy of an Injunction Writ issued out of this 
Court on the 30th day of December, A. D. 1901, in the 
cause wherein the National Biscuit Company is the com- 
plainant and the Dake Cracker Company et al. are the 
defendants, as the same appears from the original issued 
out of and under the seal of this Court. 

In Testimony Whereof, I have hereunto set my hand 
and affixed the seal of said Court at my office in Chicago, 
in said District, this 30th day of December, A. D. 1901. 

S. W. Burnt i am, 

Clerk. 




NATIONAL BISCUIT COMPANY vs. DAKE CRACKER COMPANY 



OEDEB MAKING LNJUNCTIOX PERPETUAL. 

Circuit Court of the Exited States, "1 
Northern District oe Illinois. I 
Nortmeen Division. 

May 28, 1902. 

Present, Hon. Christian C. Kohlsaat, District Judge. 

National Biscuit Company 1 26,043. 

vs. I In Equity. 

Dake Cracker Company and J. A. Bill for Infringement 
Bernard Hossack. , of Trade Xame. etc. 

This cause coming on to be heard this 25th day of May. 
1902. upon the pleadings as filed, Messrs. Offield, Towle 

& Linthicum. attorneys for and appearing in behalf of 

said complainant, the National Biscuit Company, and Mr. 
W. P. Fennell, attorney for and appearing- in behalf of 
the defendant: and it appearing to the Court that said 
defendants do not desire further to contest or defend 
this action, and admit the truth of the allegations of the 
bill of complaint ; and that said defendants have tendered 
and paid the costs in this action as taxed by the clerk. 
and have also settled for and paid to complainant the 
damages caused to plaintiff by the commitment of the 
mil awful acts as set forth in the bill of complaint, and 
that no remaining question is presented except and re- 
lating to the matter of the granting of the injunction 
therein. 

It is therefore ordered, adjudged and decreed that the 
preliminary injunction heretofore granted in this case 
is hereby made perpetual, and that this decree and order 
be, and is, final. 



NATIONAL BISCUIT COMPANY vs. DAKE CRACKER COMPANY 83 



Northern District of Illinois,) 
Northern Division. ) 

I, Marshall E. Sampsell, Clerk of tlie Circuit Court of 
the United States for said Northern District of Illinois, 
do hereby certify the above and foregoing to be a true and 
complete copy of the order entered of record in said 
Court on the 28th day of May, A. D. 1902, in the cause 
wherein National Biscuit Company is the complainant 
and Dake Cracker Company et al. are the defendants, as 
the same appears from the original records thereof now 
remaining in my custody and control. 

In Testimony Whereof, I have hereunto set my hand 
and affixed the seal of said court at my office in Chicago, 
in said District, this 26th day of May, A. D. 1904. 

Marshall E. Sampsell, 

Clerk, 




(Etrnrit (tart of tty? Initio States 



Middle District of Pennsylvania 



NATIONAL BISCUIT COMPANY 

Complainant, 



LAWRENCE WALTER 

Defendant. 



IN EQUITY 



ORDER, INJUNCTION AND DECREE 



CHARLES K. OFFIELD 
EARL D. BABST 
H. C. REYNOLDS 

For Complainant. 

S. J. STRAUSS 

For Defendant, 



86 



NATIONAL BISCUIT COMPANY f*. WALTER 





NATIONAL BISCUIT COMPANY vs. WALTER 87 



United States Circuit Court, \ 
Middle District of Pennsylvania.] 



National Biscuit Company, 
Complainant, 
vs. 
Lawrence Walter, 

Defendant. 



In Equity. 

Motion for Injunction. 



INJUNCTION OEDEE. 

This cause coming on to be heard upon the 21st day of 
May, A. D. 19'02, at 10 o'clock a. m., upon motion for in- 
junction as filed, and upon the pleadings and affidavits 
filed herein, Messrs. Charles K. Offield and H. C. Eey- 
nolds, solicitors and of counsel for the motion, and S. J. 
Strauss for the defendant, the court having duly con- 
sidered the same, 

And it appearing to the court, from a bill of com- 
plaint, exhibits and affidavits filed herein, that the mo- 
tion should be granted: 

It is, therefore, ordered, adjudged and decreed that a 
preliminary injunction issue under, and in accordance 
with the allegations of, and the prayer of the bill of com- 
plaint filed herein, to continue in effect until the next 
term of this court. 

E. A. Archibald, 

District Judge. 



88 NATIONAL BISCUIT COMPANY vs. WALTER 

INJUNCTION. 

Circuit Cotjbt of the United States of America, ( 

Middle District of Pennsylvania. ) S:5, 

THE UNITED STATES OF AMERICA, 

To Lawrence Walter, and to your Counselors, Attor- 
neys, Solicitors, Trustees, Agents, Clerks, Employes, 
Servants and Workmen, and to each and every of you, 
Greeting: 

"Whereas, It hath been represented to the Judges of our 
Circuit Court of the United States for the Middle Dis- 
trict of Pennsylvania in Chancery sitting, on the part of 
National Biscuit Company, complainant in its certain 
hill of complaint, exhibited in our said Circuit Court, on 
the Chancery side thereof, before the judges of said 
court, against you, the said Lawrence Walter to be re- 
lieved touching the matters complained of. In which 
said bill it is stated, among other things, that you are 
combining and confederating with others to injure the 
complainant touching the matters set forth in said bill, 
and that your actings and doings in the premises are con- 
trary to equity and good conscience. And it being or- 
dered that a "Writ of Preliminary Injunction issue out of 
said court, upon said bill, enjoining and restraining you, 
and each of you, as provided for in said bill ; We, there- 
fore, in consideration thereof, and of the particular mat- 
ters in said bill set forth, do strictly command you, the 
said Lawrence Walter, your Counselors, Attorneys, 
Solicitors, Trustees, Agents, Clerks, Employes, Servants, 
and Workmen and each and every of you, that you do 
absolutely desist and refrain from the manufacture, 
use or sale of cartons or packages, or bakery products, 
contained in cartons, having thereon a red label or wrap- 



NATIONAL BISCUIT COMPANY vs. WALTER 



89 



per simulating the red label wrapper of complainant; 
and do absolutely desist and restrain from the manufac- 
ture, use, or sale of cartons or packages containing 
bakery products, having thereon a red label or wrapper, 
with accompanying markings complained of; or from, in 
any manner whatever, advertising or selling bakery 
products or packages having thereon, substantially, com- 
plainant's red label or wrapper, or any marking or imi- 
tation thereof, or simulation thereof, that may be in any 
way calculated to, in any way, mislead or deceive; and 
otherwise do absolutely restrain from forthwith, in any 
other way, fraudulently using said complainant's red 
label wrapper upon cartons or packages, or in connec- 
tion with the manufacture and sale of bakery products ; 
or otherwise violating or infringing the equitable rights 
of complainant, as set forth and specified in complain- 
ant's bill of complaint, until this Honorable Court, in 
Chancery sitting, shall make other order to the con- 
trary. Hereof fail not, under the penalty of what the 
law directs. 

To the Marshal of the Middle District of Pennsylvania 
to execute, and return in due form of law. 

Witness, the Hon. Melville W. Fuller, Chief Justice of 
the United States of America, at Scranton, in said Dis- 
trict, this 21st day of May in the year of our Lord one 
thousand nine hundred and two, and of our Independence 
the one hundred and twenty-sixth year. 

A. J. Colbttbn, Jr., 

Deputy Clerk. 




90 NATIONAL BISCUIT COMPACT r*. WALTER 

FINAL DECREE. 

In tizz Oaacun Court or the Unzzz: States. 
Fob :zz Middle District : z ?z: z-zlyaxia. 



National Biscuit Corupanv. -> No. 7. 'Jctober 

C. Term, 1902. 

z i yB ill for an I 

Lawrence Walter, agement. etc. 

Defendant. Z rrair Compe: 



This canse coming on to be heard upon the 23rd day of 
April, A. D. 19CKt, at ten o'clock a. m., npon the final plead- 
ings, and proofs, and the Court being fully advised and 
having duly considered the same, 

Iz is iHizzzzz izzzzzz. adjudged and decreed: 

First: That the said complainant has good right and 
title in and to the red label or wrapper used by them in 
the manufacture and sale of cartons or packages of gra- 
ham crackers, like or substantially like "Complain- 
ant's Exhibit, Complainant's Label and TTrapper Pack- 
age,'' identified by complainant's bill of complaint and 

: sented as an exhibit in thi- suse. 

; ond: That the defendant has infringe*! and vio- 
lated the right and title of said complainant, as above 
identified, by selling and purchasing and selling cartons 
or packages of graham crackers, having thereon a red 
label or wrapper like or substantially like complainant - 
red label or wrapper, and having thereon lettering and 
marking like or substantially like complainant's letter- 
ing and marking, upon complainant's exhibit, and 
particularly shown by ** Complainant 's Exhibit. Defend- 
ant 'a C ai : :ns or Packages," present as an exhibit in this 

Tl Ird: That this cause be referred to Henrv A 



NATIONAL BISCUIT COMPANY vs. WALTER 



91 



Knapp, Esq., one of the Masters in Chancery in this 
Court, to take testimony and ascertain and report to this 
Court the profits accruing to the defendant, by reason 
of the commitment of the unlawful acts here found, and 
the damages accruing to the complainant, by reason of 
such acts, with full power to summon and command the 
attendance of the defendant for examination with all 
books and papers relevant to such examination, and to 
summon and command also the attendance of all wit- 
nesses having knowledge of facts relevant to the deter- 
mination of questions involved in this issue of reference ; 
and that the testimony heretofore taken in this cause 
shall be before said Master so far as relevant to this 
reference. Said Master to report to this Court his find- 
ings and conclusions thereon. 

Fourth: That the preliminary injunction heretofore 
granted, and now in force, is hereby made perpetual, and 
the complainant have and recover from the defendant 
the costs in this case to be taxed, and have execution 
therefor. 

R. A. Archbald, 

District Judge. 



United States of America, ) , 
Middle District of Pennsylvania. \ b 

I, Edward R. W. Searle, Clerk of the Circuit Court o\' 
the United Stales of America, for the Middle District of 
Pennsylvania iu the Third Circuit, do hereby certify that 



92 



NATIONAL BISCUIT COMPANY vs. WALTER 



the writings annexed to this certificate are true copies of 
their respective originals on file and now remaining 
among the records of said court in my office. 

In testimony whereof, I have hereunto subscribed my 
name and affixed the seal of the said Court, at Scranton, 
this 31st day of May in the year of our Lord one thousand 
nine hundred and four and of the Independence of the 
United States the 128. 

E. W. R. Searle, 

Clerk of C. C. 




dtrnttt (tart of tty? l^nxtth £>tat£0 

Western District of New York 



NATIONAL BISCUIT COMPANY 

Complainant, 



IRA SWICK 

Defendant. 



IN EQUITY 



STIPULATION FOR INJUNCTION, 
OPINION AND DECREE 



MOOT, SPRAGUE, BROWNELL & MARCY 
OFFIELD, TOWLE & LINTHICUM 
EARL D. BABST 

For Complainant. 

BANNING & BANNING 
BENJAMIN C. STARK 

For Defendant. 



- 



: comi'a> - - wtick 





NATIONAL BISCUIT COMPANY vs. SWICK 



95 








96 



NATIONAL BISCUIT COMPANY VS. SWICK 




^^i^^ i js^g^aapr^jjwg^^ gpg^ 




NATIONAL BISCUIT COMPANY vs. SWICK 97 



Stipulation fok Injunction. 



Circuit Court of the United States, Western District 
of Neav York. 



National Biscuit Company, 
Complainant, 
vs. 
Ira Swick, 

Defendant. 



In Equity. 



It is hereby stipulated and agreed by and between 
the above parties, by their counsel, respectively, that an 
injunction may be entered in the above entitled cause 
against the defendant enjoining him from using the 
"Long Branch Biscuit Kibbon-Tying" design, the trade- 
mark or name "Zephyre^," and the trade-mark or name 
"Excelsior" or "Excelsior Butter Cracker" as prayed 
for in the bill of complaint in the above entitled cause, 
but without costs, profits or damages to which the com- 
plainant might be entitled for the past, the same hav- 
ing been mutually agreed upon and arranged. 

It is further stipulated and agreed that the Ohio Bak- 
ing Company, manufacturer of the cartons and packages 
sold by the defendant containing the above mentioned 
trade-marks, names or designs, shall cease and discon- 
tinue the use of each of the above trade-marks, names or 
designs on or before the First day of January, 1902, and 
in consideration thereof the complainant hereby releases 
and quit claims under said agreement and arrangement 
the said Ohio Baking Company from any and all claim 



L-'S NATIONAL BISCUIT COUPANT i 5WICK 

for damages or profits which it might have against said 
pany on account of its use prior to January 1. 1902, 

oi each of said trade-marks, names or designs whether 
a packages, sold to the defendant herein or others. 

DfFIEEDj TOWLB & LlXTHICrM, 

Solicit c Com pi:: 

Baiotxetg & Baxx::- -. 

SoliciU rs ; . r Deft it :. 



NATIONAL BISCUIT COMPANY vs. SWICK 



99 



(United States Circuit Court, Western Division New York. March 17, 

1903.) 

No. 134. 

1. Trade-Marks — Infringement. 

A technical trade-mark, although not a facsimile of another, may 
be so used by a rival manufacturer as to imitate another's trade- 
mark, and, when such use actually deceives the public, it consti- 
tutes an infringement, against which a court of equity will grant 
relief. 

2. Same. 

Complainant used and registered a trade-mark consisting of a 
square label or seal of a vivid red color, with the corners clipped, 
on which was an arbitrary combination of straight and curved lines 
in white, in which were printed the letters and word "In-er-seal." 
These labels were placed on the ends of complainant's cartons con- 
taining bakery products. Another manufacturer of the same class 
of goods, registered as a trade-mark, and used in the same manner 
on its cartons, a label the same in size, shape, and color, having 
thereon a combination of white lines consisting of circles and straight 
lines with the words "Factory" and "Seal" printed thereon. The 
figure or symbol was not the same, but the general effect of the 
combination in a label used in the same place on a carton of the 
same size, shape, and color, together with a similar figure and the 
word "Seal," was to simulate the trade-mark of complainant, and 
to deceive purchasers. Held, that such use of defendant's trade- 
mark was an infringement of that of complainant, which entitled it 
to an injunction. 

In Equity. Suit for infringement of trade-mark. On 
final hearing. 

Moot, Sprague, Brownell & Marcy, Offield, Towle & 
Linthicum, and Earl D. Babst (Charles K. Offield, of 
counsel), for complainant. 

Banning & Banning and Benjamin C. Starr, for 
defendant. 

HAZEL, District Judge. The bill as originally filed, 
charges the defendant with unlawful infringement of a 
trade-mark and five trade-names used by com- 
plainant upon its various bakery products. A 
stipulation was filed before answer, admitting in- 
fringement by defendant as to five o\' the trade- 
names. Accordingly a decree was entered by con- 



100 



NATIONAL BISCUIT COMPANY vs. SWICK 



sent of all parties restraining and enjoining the future 
use of such trade-names by the defendant. The alleged 
infringement by the defendant of complainant's "In-er- 
seal" registered trade-mark No. 35,108, dated Septem- 
ber IS, 1900, is now the sole and specific subject for judi- 
cial determination. 



Complainant ? s Trade-mark. 




NATIONAL BISCUIT COMPANY vs. SWICK 



101 



Defendant 's Trade-makk. 




The defendant's infringement consists in the use of the 
registered trade-mark No. 35,597, dated December 18, 
1900, issued to the Ohio Baking Company. 

The proofs show that complainant manufactures vari- 
ous kinds of bakery products, which it places upon the 
market in special and distinct sizes of cartons or packages. 
Such cartons and packages widely vary in form and col- 
oring, and are lettered on their sides in different size type. 
Upon the ends of each package or carton is applied the 
trade-mark printed upon a square label or seal, clipped 
at the corners, in clear white lines upon a vivid red hack 
ground. The proofs further show that iho trade-mark 
seal has since its adoption regularly been applied to the 
ends of the cartons in the maimer described, except in a 
few instances. Complainanl contends that its producl lias 



102 NATIONAL BISCUIT COMPANY 



SWICK 



become well known to the general public because of the 

peculiarly quaint configuration of its trade-mark, which 
is uniquely displayed. The bill charges the adoption of 
the trade-mark on or about the month of March, 1899, and 
its subsequent registration in the office of the Commis- 
sioner of Patents May 12, 1900. It is specifically de- 
scribed as — 

"An arbitrarily-selected design or symbol representing 
an oval-shaped figure separated centrally and horizontally 
in the direction of its greatest length by a bar, from which 
there rises centrally and at right angles thereto a perpen- 
dicular bar. which near its upper end is intersected by 
double horizontal cross-bars, thus forming what might be 
designated as a 'double-T-shaped 5 figure or cross-tree, 
while with said oval-shaped section and above the hori- 
zontal dividing-bar and to the left of the perpendicular 
intersecting bar appear the letters 'I X.' and on the op- 
posite side of said perpendicular intersecting bar appear 
the letters 'EE,' the lower section of said oval-shaped 
figure having therein the word 'Seal.' ? ' 

The specification describes and the drawings show the 
design as applied upon a rectangular background, the cor- 
ners thereof being clipped or irregular. The specification 
states a preference for the employment of a bright red or 
orange-colored background in connection with the trade- 
mark design with the figures and lines printed in white. 
The specification further says that the purpose and ob- 
ject of the peculiarity of the design is to produce a con- 
spicuous effect, securing the greatest possible prominence. 
The design is usually printed on the labels attached to the 
ends of the cartons or packages containing complainant's 
product. This arbitrary and fanciful designation was 
first appropriated by complainant as a trade-mark for its 
bakery product, and it is. therefore, entitled to protection 
from infringement. It quite clearly appears from the evi- 
dence that complainant's trade-mark has been extensively 
advertised at large expense throughout the United States 



NATIONAL BISCUIT COMPANY VS. SWICK 



103 



and in the locality where the defendant carries on his 
business of selling bakery products, and where the alleged 
infringing trade-mark is asserted to have been fraudu- 
lently used. The defendant is a dismissed employe of the 
complainant. He was well acquainted with complainant's 
customers in the territory where the alleged infringements 
were committed. Soon after his dismissal from com- 
plainant's employ, he commenced to divert the trade of 
complainant by introducing the bakery product of a com- 
petitive manufacturer, and finally simulated complain- 
ant's trade-mark, as a result of which his sales increased. 
Defendant's bakery product is manufactured by the Ohio 
Baking Company, and is put upon the market wrapped 
up in carton form, sealed at the ends, and having a vivid 
red rectangular label at each end, clipped at the corners. 
Upon the seals or square labels is imprinted in distinctive 
white lines the registered trade-mark of the Ohio Baking 
Company, above set forth. The labels upon which is 
printed the infringing device as to color, size, and irregu- 
lar shape are in similitude of complainant's labels or 
seals. The configuration of the infringing trade-mark 
consisting of curved and straight lines, flaring at the ends 
in resemblance of complainant's lines, is more particularly 
described in the specification as consisting of three paral- 
lel vertical bars and central cross-bar and two circles ar- 
ranged in the manner shown by the figure itself. Defend- 
ant claims that the Ohio Company trade-mark really con- 
sists of a fanciful monogram of the word "Ohio," and 
that he has the right to use it in any size, shape, and color. 
Prominently appearing in defendant's label are the words 
"Factory" at the upper end and "Seal" at the lower end. 
This also would appear to be in simulation of the word 
"In-er-seal" printed on complainant's device. The pack- 
ages or cartons of both complainant and defendant have 



104 



NATIONAL BISCUIT COMPANY vs. SWICK 



printed matter upon their sides, indicating the character 
of their contents and the name of the manufacturer. The 
form of the package and style of type and color of wrap- 
per are concededly the property of the public, as, indeed, 
are the labels clipped at the corners having a bright red 
background. No point is made to any similitude of car- 
tons, style, or color of print, nor even of the separate 
features of complainant's trade-mark. The defendant 
contended generally on argument that the specifically de- 
fined trade-mark of complainant as to its general features 
and characteristics must be interpreted as limiting its 
scope to that which is actually described. If this conten- 
tion means that complainant is restricted to the use of 
the trade-mark, and has obtained no exclusive right in 
the collocation of its parts and the distinguishing features 
by which the trade-mark has become known to the public, 
such contention is without merit. The gist of the com- 
plaint is a violation of a trade-mark, which is composed 
of a peculiar configuration of lines and a combination of 
other features. In other words, the distinguishing char- 
acteristics of the trade-mark consist in the circles and 
straight lines in relation to each other, and printed upon 
the label in white and upon a vivid red background. In 
the case of Lalance & Grosjean Mfg. Co. v. National 
Enameling & Stamping Co. (C. C), 109 Fed. 317— a case 
of unfair competition — it was held that no one can have 
a trade-mark monopoly of any color of paper, or any 
shape of label, or any color of ink, or any one or other 
detail, yet the general collocation of such details will be 
protected. The sole question, therefore, is whether the 
defendant's design for a trade-mark imprinted on a vivid 
red background in simulation of complainant's design is 
fairly within complainant's asserted exclusive scope. That 
complainant's trade-mark and manner of displaying the 



NATIONAL BISCUIT COMPANY vs. SW1CK 



105 



same attracts the public attention cannot be successfully 
disputed. Undoubtedly, complainant's manufactured 
product lias become extensively known to the public solely 
by its peculiar trade-mark. I have no doubt that an in- 
tending purchaser of complainant's product using ordi- 
nary care is attracted to the arbitrary trade-mark design, 
and not to any printed words on the sides of the pack- 
ages, or even to the nomenclature of the manufacturer of 
the product. When both designs were exhibited on the 
hearing, I became well satisfied that defendant's device 
and manner of applying it in combination with the other 
features are in imitation of complainant's. Such resem- 
blance tends to deceive an ordinary purchaser giving the 
usual attention, and causes him to purchase the one be- 
lieving it to be the other. Although defendant's device 
and configuration is not in strict resemblance to complain- 
ant's, yet force is given to the impression which I ob- 
tained on the hearing because of the adoption by defend- 
ant of a bright red background and a label clipped at the 
corners of corresponding size to that of complainant. 
The record discloses that the trade-mark seal of the de- 
fendant and the manner of displaying it upon the ends 
of cartons and packages is likely to deceive the ordinary 
purchaser into the belief that lie was purchasing the prod- 
uct of complainant. By the testimony of defendant's wit- 
ness Gaiser, a grocer, it appears that an intending pur- 
chaser must make a close examination of both packages 
in order to distinguish defendant's packages and cartons 
from complainant's. The witness was unable at the bear- 
ing, when both packages were exhibited to him, to dis- 
cover much difference, and was compelled to look for the 
name of the manufacturer to distinguish the product of 
complainant from that of defendant. Other evidence was 
given by complainant upon the hearing showing the sim- 



106 NATIONAL BISCUIT COMPANY vs. SW1CK 

ilitude of the respective trade-marks to be such as to de- 
ceive the public into buying the bakery product of defend- 
ant under the impression that they are buying those of 
complainant. Irrespective, however, of such proof, the 
trade-mark imprinted upon a bright red-colored label, 
clipped at the corners, and of corresponding size to com- 
plainant's is alone calculated to deceive, and must be re- 
garded as an infringement of complainant's rights 
secured by its registered trade-mark. Specific proof of 
purchases by individuals actually deceived under such cir- 
cumstances appears not to be necessary. Cleveland Stone 
Co. v. Wallace (C. C), 52 Fed. 431; National Biscuit Co. 
v. Baker (C. C), 95 Fed. 135; Von Mumm, v. Frash 
(C. C), 56 Fed. 830. In the controversy it is immaterial 
that the size of cartons, color of wrapper, size and kind 
of label, and separate features of complainant's trade- 
mark are old, and may, therefore, be used by any one. 
The complainant's trade-mark, its features of coloring, 
rectangular labels, w T hite lines on a vivid background, 
manner of displaying the arbitrary designation at the 
ends of the packages, all in combination, are peculiarly 
distinguishing marks for its goods. I am well satisfied 
that a technical trade-mark, although not a fac-simile of 
another, may, nevertheless, be so used by a rival manu- 
facturer as to imitate another's trade-mark, and when 
such use actually deceives the public a court of equity will 
afford relief. Scheuer v. Muller, 20 C. C. A. 161, 74 Fed. 
225; Draper v. Skerrett (C. C), 94 Fed. 912. I have ex- 
amined the case of Eichter v. Anchor Eemedy Co. (C. C), 
52 Fed. 455, and other cases cited by counsel, but such 
cases are either not in point or do not disturb the conclu- 
sion reached. By the manner of defendant's use of the 
Ohio Baking Company's trade-mark he obtains a benefit 
to which he is not entitled. He appropriates the good will 



NATIONAL BISCUIT COMPANY vs. SWICK 



107 



of a rival business by purloining his rival's method of 
dressing his vendible goods. City of Carlsbad v. Schultz 
(C. C), 78 Fed. 471; Sprague Elec. Ry. & Motor Co. v. 
Nassau Elec. Ry. Co., 37 C. C. A. 286, 95 Fed. 821. As 
Judge Wanty said when the case against the Ohio Baking 
Company was before him on application for preliminary 
injunction, ' i Why does the defendant use the exact shade 
of red used by complainant V ' Further inquiry is perti- 
nent. Why white letters of substantially the same type 1 
Why labels of uniform size, and with clipped corners? 
Other questions of like kind may be propounded. The 
record discloses no satisfactory answer, and therefore it 
is manifest that the defendant deliberately and fraudu- 
lently imitates the trade-mark of complainant, and in that 
manner designs to palm off his goods for those of com- 
plainant. 

The complainant may have a decree, with costs, enjoin- 
ing the defendant from imitating or simulating complain- 
ant's "In-er-seal" trade-mark, as set out in this opinion. 
So ordered. 

121 Fed. Eep. 1007. 



108 NATIONAL BISCUIT COMPANY vs. SWICK 

FINAL DECEEE. 

United States Cikcuit Court, \ 
Western District of New York. I 



National Biscuit Company, 
Complainant, 
vs. 
Ira Swick, 

Defendant. 



Bill for Infringement 

of Trade-mark. 
Decree. 



This cause coming on to be heard upon pleadings and 
full proof, and having been fully argued by counsel re- 
spectively, for both parties litigant: Mr. Charles K. 
Offield, Mr. Adelbert Moot, and Mr. Earl D. Babst, for 
complainant; Messrs. Banning & Banning, and Mr. 
Benjamin C. Starr, for defendant; and the court being 
fully advised, and having duly considered the same, 
orders, adjudges and decrees: 

First : That the said complainant, the National Biscuit 
Company's In-er-seal Trade-mark is a good and valid 
Trade-mark, and the complainant has full and unques- 
tioned title thereto and therein, as alleged in the bill of 
complaint filed herein. 

Second: That the said defendant, Ira Swick, has in- 
fringed upon and violated said complainant's In-er-seal 
trade-mark, as alleged in said bill of complaint. 

Third: That the said defendant, his agents, servants, 
attorneys, and employes be, and hereby are enjoined from 
applying or using complainant 's In-er-seal trade-mark in 
any manner whatsoever, upon, or in connection with, 
bakery products ; or in any manner whatsoever, handling, 
selling, or advertising bakery products, or packages, or 
cartons containing bakery products having thereon com- 
plainant's said trade-mark, or any imitation or simulation 
thereof. 



NATIONAL BISCUIT COMPANY vs. SWICK 



109 



Fourth : That the said complainant has the right to re- 
cover any and all damages accruing to, or arising out of 
said unlawful violation and infringement of said trade- 
mark by said defendant, together with the cost herein to 
be taxed; and that this cause be referred to George P. 
Keating, he being a suitable person as Master of this 
Court, to take, state and report an account of such dam- 
ages under and in accordance with this decree, and that 
upon said accounting the testimony heretofore taken by 
either party in this cause may be read by either party, 
and considered by the Master. 

John E. Hazel, 

U. 8. J. 

Endorsed: U. S. Circuit Court, Western District of 
New York. In Equity. National Biscuit Company vs. 
Ira Swick. Decree. U. S. Circuit Court, Western Dist. 
of N. Y. Filed Mar. 28, 1903. Harris S. Williams, Clerk. 



United States or America, ) 
Western District of New York.} 

I, Harris S. Williams, Clerk of the Circuit Court of the 
United States, for the Western District of New York, do 
hereby certify that I have compared the annexed copy of 
Decree with the original entered and on file in this office, 



110 



NATIONAL BISCUIT COMPANY w. SWICK 



and that the same is a correct transcript therefrom, and 

of the whole of said original. 

And I further certify that I am the officer in whose 
custody it is required by law to be. 

Ix testimony whereof, I have caused the seal of the 
said Court to be affixed at the City of Buffalo, in said 
District, this 6th day of April. A. D. 1903. 

Harris S. TTilliams, 

Clerk. 




(Utrnrit Court of % Inttrn g>M?& 



Southern District of New York 



NATIONAL BISCUIT COMPANY 
a corporation 

Complainant, 



HENRY PUNCHARD, Sr., and HENRY 
PUNCHARD, Jr., co=partners, doing 
business as HENRY PUNCHARD & 

SON, 

Defendants. 



N EQUITY 



DECREE AND INJUNCTION 



EDMUND WETMORE 
CHARLES K. OFFIELD 
EARL D. BABST 

For Complainant. 

JOHN A. MAPES 

For Defendants, 



NATIONAL BISCUIT COMPANY vs. PUNCHARD 



113 





114 



------- scun :. pdxc 



•UXCHAHI 





NATIONAL BISCUIT COMPANY vs. PUNCHARD 115 

FINAL DECREE. 

United States Circuit Court, 

Southern District of New York. 

National Biscuit Company, a cor- 
poration, 

Complainant, 
vs. 
Henry Punchard, Sr., and Henry 
Punchard, Jr., co-partners, do- 
ing business as Henry Pun- 
chard & Son. 

Defendants. 

This cause coming on to be heard under the pleadings 
as filed, and Mr. Edmund Wetmore, Mr. Earl D. Babst 
and Mr. Charles K. Offield, appearing in behalf of the 
complainant, and Mr. John A. Mapes in behalf of the 
defendants, and it appearing to the Court that the said 
defendants do not desire to further contest this action, 
but have made a certain settlement of the same and as- 
sented as follows : 

(1) That the said complainant is the rightful and ex- 
clusive owner of the trade-name "Uneeda" or "Uneeda 
Biscuit" as alleged in said bill of complaint, and is the 
rightful and exclusive owner of the trade-mark "In-er- 
seal", consisting of a vivid red background, square in 
shape with uniform clipped corners having white line 
markings thereon and applied to each end of the bakery 
cartons or packages with a marginal exposure surround- 
ing the same, and is the rightful and exclusive owner of 
the wrapper application, word collocation and decorative 
appearance of the wrapper surrounding and enclosing 
said carton or package, as appears by complainant's ex- 
hibits filed herewith. 

(2) That the said defendants, Henry Punchard, Sr., 



116 



NATIONAL BISCUIT COMPANY vs. PUNCHARD 



and Henry Puncliard, Jr., have infringed and violated 
these exclusive rights, trade-name, trade-mark and wrap- 
per embellishment by the use upon such cartons of the 
words "Ulika Biscuit," as appears upon the sides of de- 
fendants' cartons, and of the bright red seal upon the 
ends thereof with white line accompanying markings 
thereon and by the wrapper simulation of complainants, 
as appears by "Complainant's Exhibit Defendants' In- 
fringing Carton" filed herein. 

(3) That the Manhattan Biscuit Company, a corpora- 
tion organized under the laws of the State of Xew Jersey, 
etc, puts up, makes and sells the infringing cartons with 
the wrapper accompaniment as disclosed by the defend- 
ants' carton, and instigated and authorized the commit- 
ment of the infringing acts above found. 

(4) That the defendants having settled for the dam- 
ages and profits suffered by the complainant and accru- 
ing to the defendants by reason of these infringing acts, 
no reference to a master for an accounting is made, but 
it is — ■ 

Ordered, adjudged axd decreed that a perpetual in- 
junction issue as prayed for in the bill of complaint in 
the manner and to the extent demanded in the fourth 
subdivision of the prayer for relief contained in the com- 
plainant's bill of complaint and that the defendants pay 
the taxable court costs in this action and in default there- 
of that execution issue therefor. 

Dated Xew York, November 3, 1904. 

E. Henry Lacombe, 
U. S. Circuit Judge. 

I hereby consent to the entry of the above decree. 

Johx A. Mapes, 
Defendants' Solicitor. 



NATIONAL BISCUIT COMPANY vs. PUNCHARD 



117 



We hereby consent to the entry of the above decree. 
Earl D. Babst, 

OfFIELD, TOWLE & LlNTHICUM, 

Complainant's Solicitors. 
Edmund Wetmore, 
Charles K. Offield, 
Earl D. Babst, 

Of Counsel. 

(Endorsed) United States Circuit Court, Southern 
District of New York. National Biscuit Co., Complain- 
ant, vs. Henry Punchard, Sr., et al., Defendants. Final 
decree. Earl D. Babst & Offield, Towle & Linthicum, 
Solrs. for Complt., 34 Pine St., New York. IT. S. Circuit 
Court, Southern District of New York, Filed Nov. 3, 
1904, John A. Shields, Clerk. 




A copy. 

John A. Shields, 

Clerk. 



IIS NATIONAL BISCUIT COMPANY WS. PUNCHARD 

IXJUXCTIOX. 

THE PEESIDEXT OF THE EXITED STATES OF 

AMERICA, 

To Henry Punchard, Sr., and Henry Punchard, Jr., 
their clerks, attorneys, servants, agents and workmen, 
and each and every of them, Greeting: 

Whereas, it has been represented to us in our Circuit 
Court of the United States for the Second Circuit and 
Southern District of New York, that the complainant. 
National Biscuit Company, is the rightful and exclusive 
owner of the trade-mark "Uneeda" or "Uneeda Bis- 
cuit,' ' as alleged in the bill of complaint herein, and is 
the rightful and exclusive owner of the trade-mark "In- 
er-seal," consisting of a vivid red background square in 
shape with uniform clipped corners having white line 
markings thereon and applied to each end of the bakery 
cartons or packages, with a marginal exposure surround- 
ing the same, and is the rightful and exclusive owner of 
the wrapper application, word collocation and decorative 
appearance of the wrapper surrounding and enclosing 
said carton or package, as appears by complainant's ex- 
hibits filed with said bill of complaint, and that the said 
defendants, Henry Punchard, Si\, and Henry Punchard, 
Jr., have infringed and violated these exclusive rights, 
trade-name, trade-mark and wrapper embellishment by 
the use upon such cartons of the words "Ulika Biscuit, " 
as appears upon the sides of defendants' cartons, and 
of the bright red seal upon the ends thereof with white 
line accompanying markings thereon, and by the wrapper 
simulation of complainant : 

Now, therefore, we strictly command and enjoin you. 
the said Henry Punchard, Sr., and Henry Punchard, Jr., 



NATIONAL BISCUIT COMPANY vs. PUNCHARD 119 

and each of you, your servants, agents and employes, 
and all claiming or holding through or under you, un- 
der the penalties that may fall upon you in case of dis- 
obedience that you forthwith permanently and forever 
desist from in any manner whatsoever handling, adver- 
tising or selling the packages heretofore sold by 
defendants, complained of in the bill of complaint and 
hereinabove described, or making use of the word 
"Ulika" or "Ulika Bis-kit," or any word substantially 
like it or them, as the name or designation, or as a part 
of the name or designation connected with any biscuit 
upon any package used in the sale of biscuits, and from 
in any manner whatsoever making use of the word or 
words "Ulika" or "Ulika Bis-kit/' or any other word 
substantially like it as the name or designation, or part 
of the name or designation upon any wrapper on any 
package of biscuits or crackers whatsoever ; or from the 
use of said word or name upon any package or packages 
like those hereinabove described as the packages or car- 
tons of said defendants, and in every way from making 
use in connection with the sale or advertisement of bis- 
cuit the words " Ulika" or "Ulika Bis-kit" upon any 
packages so nearly like your orator's package hereinbe- 
fore described as to be calculated to mislead, or from in 
any way using upon the ends of such packages or cartons 
a label or seal of red background with white line mark- 
ings thereon, as shown upon the ends of defendants' 
packages herein complained of, or from advertising by 
picture representations your orator's said trade-names 
or trade-mark and wrapper ornamentation, as appears 
in "Complainant's Exhibit Defendants' Advertisement 
No. 1," and "Complainant's Exhibit Defendants 1 Poster 
Infringement No. 2," and from violating and infringing 
the rights of your orator in the premises as hereinbefore 
set forth. 



120 



NATIONAL BISCUIT COMPANY vs. PUNCHARD 



Witness the Hon. Melville W. Fuller, Chief Justice of 
the United States at the City of New York, Borough of 
Manhattan, on the 5th day of November, 1904. 

John A. Shields, 

Clerk. 




A copy. 

John A. Shields, 

Clerk. 



Cirrmt Glourt of % Imten BUUb 



District of Maryland 



NATIONAL BISCUIT COMPANY 

Complainant, 



HARQRAVE BISCUIT COMPANY, 
JOSEPH W. HARGRAVE, WILLIAM 
B. HARQRAVE, EPPS HARQRAVE, 
STEVEN J. VAN LILL and JAMES W. 

CHAPMAN, Jr., 

Defendants. 



IN EQUITY 



FINAL DECREE AND INJUNCTION 



OFFIELD, TOWLE & LINTHICUM 

Solicitors for Complainant. 

W. IRVINE CROSS 
EARL D. BABST 

Of Counsel for Complainant. 

GEORGE D. PENNIMAN 
JAMES W. CHAPMAN, Jr. 

Solicitors for Defendants. 



NATIONAL BISCUIT COMPANY vs. HARGRAYE BISCUIT COMPANY 123 







HARGRAVE: 

BISCUIT 






124 



NATIONAL BISCUIT COMPANY vs. HARGRAVE BISCUIT COMPANY 





NATIONAL BISCUIT COMPANY vs. HARGRAVE BISCUIT COMPANY 125 



FINAL DECEEE. 

United States Circuit Court, 
District of Maryland. 



National Biscuit Company, 
Complainant, 
vs. 
Hargrave Biscuit Company, 
Joseph W. Hargrave, William 
B. Hargrave, Epps Hargrave, 
Steven J. Van Lill and James 
W. Chapman, Jr., 

Defendants. 



Bill for infringement 
of trade-mark, trade- 
name and unfair 
competition. 



This cause coming on to be heard upon the pleadings 
as filed, Mr. W. Irvine Cross, Earl D. Babst and Charles 
K. Offield appearing in behalf of the complainant, and 
Mr. George D. Penniman and James W. Chapman, Jr., 
in behalf of defendants. 

And it appearing to the Court that said defendants 
do not desire further to contest or defend this action, and 
that said defendants have tendered and paid the costs to 
date in this action as taxed by the Clerk, and have also 
made settlement and paid damages and profits due the 
complainant by reason of the infringing acts set forth in 
the Bill of Complaint, and that no remaining question is 
open and present except the matter relating to the grant- 
ing of an injunction. 

It is therefore, this 19th day of October, 1905, ordered, 
adjudged and decreed that an injunction issue under and 
in accordance with the allegations of the Bill of Com- 
plaint and as identified by the prayer thereof, and that 
this decree and order be and is final. 

Tnos. J. Morris, 
J udae. 



126 NATIONAL BISCUIT COMPANY vs. HARGRAVE BISCUIT COMPANY 



United States of America, 

District of Maryland, to-wit: 

I, James W. Chew, Clerk of the United States Circuit 
Court for the District of Maryland, do hereby certify 
that the foregoing is a true copy of the Original Decree 
entered and filed in the therein entitled case in said Cir- 
cuit Court, on the 19th day of October, 1905. 

In testimony whereof, I hereunto set my hand 
and affix the seal of the said Circuit Court this 31st day 
of October, 1905. 

Jas. W. Chew, 
Clerk of said Circuit Court. 




NATIONAL BISCUIT COMPANY vs. HARGRAVE BISCUIT COMPANY 127 

INJUNCTION. 

Circuit Court of the United States of America,} 
District of Maryland. ) 

THE UNITED STATES OF AMERICA, 

To Hargrave Biscuit Company, Joseph W. Hargrave, 
William B. Hargrave, Epps Hargrave, Steven J. Van hill 
and James W. Chapman, Jr., and to your counselors, at- 
torneys, solicitors, trustees, agents, clerks, employees, 
servants and workmen, and to each and every one of you, 
Greeting: 

Whereas, it lias been represented to the Judges of our 
Circuit Court of the United States for the District of 
Maryland in Chancery sitting-, on the part of the National 
Biscuit Company, complainant, in a certain Bill of Com- 
plaint, exhibited in our said Circuit Court, on the Chan- 
cery side thereof, before the Judges of said Court, against 
you, the said Hargrave Biscuit Company, Joseph W. 
Hargrave, William B. Hargrave, Epps Hargrave, Steven 
J. Van Lill and James W. Chapman, Jr., to be relieved 
touching the matters complained of. In which said bill 
it is stated, among other things, that you are combining 
and confederating with others to injure the complain- 
ant touching the matters set forth in said bill, and that 
your actings and doings in the premises are contrary 
to equity and good conscience. 

And it being ordered that a writ of perpetual injunc- 
tion issue out of said Court, upon said bill, enjoining and 
restraining you, and each of you, as prayed for in said 
bill; We, therefore, in consideration thereof, and of the 
particular matters in said bill set forth, do strictly com- 
mand you, the said Hargrave Biscuit Company, Joseph 
W. Hargrave, William B. Hargrave, Epps Hargrave, 



128 NATIONAL BISCUIT COMPANY vs. HARGRAVE BISCUIT COMPANY 

Steven J. Van Lill and James W. Chapman, Jr., your 
counselors, attorneys, solicitors, trustees, agents, clerks, 
employes, servants and workmen, and each and every of 
you, that you 

Do Absolutely Desist and Befrain from, in any man- 
ner whatsoever handling, advertising or selling packages 
or cartons containing bakery products having upon the 
ends thereof any red seal with white line markings there- 
on, or red seal substantially like the Seal or Trade-Mark 
of your orator; or from making, using, selling or han- 
dling cartons like your orator's carton containing your 
orator's Trade-Name "Uneeda Biscuit" with wrapper 
accompaniment as shown in your orator's exhibit of the 
same, of the use of the word "Biscuit" upon a white 
parallelogram, as shown in "Complainant's Exhibit De- 
fendants' Infringing Carton," whether preceded by the 
words "Eta Hargrave Biscuit" or any other words as- 
sociated therewith, or from the use of any wrapper ap- 
plication similar to or substantially like the wrapper ap- 
plication upon your orator's "Uneeda Biscuit" package; 
and from violating and infringing the rights of your 
orator in the premises, until this Honorable Court, in 
Chancery sitting, shall make other order to the contrary. 
Hereof fail not, under the penalty of what the law di- 
rects. 

Witness, the Hon. Melville W. Fuller, Chief Justice of 
the United States of America, at Baltimore, in said Dis- 
trict, this 19th day of October, in the year of our Lord, 
one thousand nine hundred and five and of our Inde- 
pendence, the one hundred and thirtieth year. 

James W. Chew, Clerk. 




NATIONAL BISCUIT COMPANY vs. HAKGRAVE BISCUIT COMPANY 



129 



United States of Ameeica, 

District of Maryland, To- Wit: 

I, James W. Chew, Clerk of the United States Circuit 
Court for the District of Maryland, do hereby certify 
that the foregoing is a true copy of the Perpetual In- 
junction which was issued out of said Court in the case 
entitled National Biscuit Company vs. Hargrave Biscuit 
Company, et al., in said Circuit Court on the 19th day of 
October, 1905. 

In Testimony Whereof, I hereunto set my hand and 
affix the seal of said Circuit Court this 31st day of Octo- 
ber, 1905. 

Jas. W. Chew, 
Clerk of said Circuit Court. 




dimttt Court of tlje Initio States 



Eastekn District of Michigan 



NATIONAL BISCUIT COMPANY 

Complainant, 



HAMMELL CRACKER COMPANY, and 
JAMES F. HAMMELL, SAMUEL 
DUMPHY and P. J. HAMMELL, 

Defendants. 



IN EQUITY 

No. 3898 



DECREE AND INJUNCTION 



CHARLES K. OFFIELD 
EARL D. BABST 

Solicitors for Complainant. 

THOMAS, CUMMINS & NICHOLS 

Solicitors for Defendants. 



132 NATIONAL BISCUIT COMPANY vs. QAMMBLL CRACKER COMPANY 





NATIONAL BISCUIT COMPANY vs. HAMMBLL CRACKER COMPANY 



133 



FINAL DECREE. 

At a session of the Circuit Court of the United States 
for the Eastern District of Michigan, continued and held 
pursuant to adjournment, at the District Court Room, in 
the City of Detroit, on Friday the thirteenth day of Octo- 
ber, in the year one thousand nine hundred and five. 

Present: The Honorable Henry H. Swan, District 
Judge. 



National Biscuit Company, 

vs. 

Hammell Cracker Company, and 

James F. Hammell, Samuel 

Dumphy and P. J. Hammell. 



No. 3898. 
^In Equity. 



This day came the above named complainant, the Na- 
tional Biscuit Company, by Mr. Earl D. Babst and 
Charles K. Offield, its Solicitors and of Counsel, and the 
defendants by Messrs. Thomas, Cummins & Nichols, their 
Solicitors and of Counsel, and it appearing to the Court 
that the defendants do not further desire to contest this 
action, and that they have settled with and paid to the 
complainant the damages, profits and costs arising out 
of this action and the acts complained of in the Bill of 
Complaint, and that there nothing remains as to this liti- 
gation, except as to the subject matter of injunction, and 
the entry of final decree so expressed herein, the defend- 
ant consenting thereto, 

NOW, THEREFORE, TT IS ORDERED, ADJUDGED AND DECREED : 

First: That the complainant is the true, rightful origi- 
nator and sole owner of a certain trade-mark, or symbol, 
consisting of a red end seal upon tin 4 ends of cartons or 
packages, containing bakery products, having a red back- 
ground and white line markings thereon: 



134 NATIONAL BISCUIT COMPANY VS. HAMMELL CRACKER COMPANY 

Second: That the defendants have infringed upon and 
violated the exclusive rights of the complainant by the 
use and application upon the ends of their cartons con- 
taining bakery products, of a red end seal with white line 
markings thereon ■ 

Third: That the said defendants, Hammell Cracker 
Company. James F. Hammell. Samuel Duurphy and P. J. 
Hammell and each of them, and their respective agents, 
servants, and employes, and each of them, be and hereby 
are perpetually enjoined from affixing, using or applying, 
or causing to be affixed, used or applied, in any way, upon 
cartons or the ends of cartons containing bakery prod- 
ucts, any red seal with white line markings thereon, or 
from using or applying upon the ends of their cartons, 
containing bakery products, any seal in simulation or imi- 
tation of complainant's red end seal, or ••Tn-er-seal" 
trade-mark: 

Fourth.: It further appearing to this Court that the 
said defendants have settled and paid the complainant 
the damages to complainant and profits to the defendants 
arising out of the infringing acts complained of. and also 
paid to the complainant the costs in this case, no refer- 
ence to the Master for any purpose is therefore made in 
this case, and this decree as entered, is to be, and stand, 
as final. 



I xited States of America, \ 
Eastern District of Michigan, j 

I. Walter S. Harsha, Clerk of the Circuit Court of the 
United States for the Eastern District of Michigan, do 
hereby certify that the above and foregoing is a true copy 



NATIONAL BISCUIT COMPANY vs. HAMMELL CRACKER COMPANY 



135 



of Final Decree in the therein entitled cause as the same 
appears on file and of record in my office; that I have 
compared the same with the original and it is a true and 
correct transcript therefrom and of the whole thereof. 

In Testimony Whereof, I have hereunto set my hand 
and affixed the seal of said Court, at Detroit, in said dis- 
trict, this 13th day of October, in the year of our Lord 
one thousand nine hundred and five, and of the Indepen- 
dence of the United States of America, the one hundred 
and thirtieth. 

Walter S. Harsha, Clerk. 
By Adelaide Anderson Voorheis, 

Deputy Clerk. 




136 NATIONAL BISCUIT COMPANY vs. HAMMELL CRACKER COMPANY 

INJUNCTION. 

UNITED STATES OF AMERICA: 

The Circuit Court of the United States 

For the Eastern District of Michigan, In Equity. 

The President of the United States of America, 

To HammeU Cracker Company, and James F. Ham- 
in ell, Samuel Dumphy and P. J. HammeU, and to their 
counselors, attorneys, solicitors, trustees, agents and 
servants, and each and every of them, Greeting: 

Whereas, It has been represented to us, in the Circuit 
Court of the United States for the Eastern District of 
Michigan, in Equity, on the part of the National Biscuit 
Company, Complainant, that it has lately exhibited a Bill 
of Complaint and Decree against you the said HammeU 
Cracker Company, and James F. HammeU, Samuel Dum- 
phy and P. J. HammeU, Defendants, to be relieved, touch- 
ing the matters therein complained of; in which bill and 
decree it is stated, among other things, that you are com- 
bining and confederating with others to injure the said 
plaintiff touching the matters set forth in the said 
bill, and that your actings and doings in the 
premises are contrary to equity and good con- 
science; we therefore, in consideration thereof, and 
of the particular matters in the said bill and de- 
cree set forth, do strictly command you, the said 
Hammell Cracker Company, and James F. Hammell, 
Samuel Dumphy and P. J. Hammell, and the persons be- 
fore mentioned, and each and every of you, under the 
penalty of Ten Thousand Dollars, to be levied of your 
lands, goods, and chattels, to our use, that you do abso- 



NATIONAL BISCUIT COMPANY vs. HAMMELL CRACKER COMPANY 



137 



lutely desist and refrain from perpetually from affixing, 
using or applying or causing to be affixed, used or ap- 
plied, in any way, upon cartons or the ends of cartons 
containing bakery products, any red seal with white line 
markings thereon, or from using or applying upon the 
ends of their cartons, containing bakery products, any 
seal in simulation, or imitation of, complainant 's red end 
seal, or "In-er-seal" trade-mark, until the further order 
of this Court. 

Witness, the Honorable Melville W. Fuller, Chief Jus- 
tice of the Supreme Court of the United States, this thir- 
teenth day of October in the year of our Lord one thou- 
sand nine hundred and five and of the independence of 
the United States of America the one hundred and thir- 
tieth. 

Walter S. Harsh a, 

Clerk. 
By Adelaide Anderson Voorheis, 

Deputy Clerk. 




United States of America, ) 
Eastern District of Michigan. \ ss * 

T, Walter S. TTarsha, Clerk of the Circuit Court of the 
United States for the Eastern District of Michigan, do 
hereby certify that the above and foregoing is a true copy 
of Perpetual Injunction in the therein entitled cause as 



138 



NATIONAL BISCUIT COMPANY vs. HAMMELL CRACKER COMPANY 



the same appears on file and of record in my office ; that 
I have compared the same with the original and it is a 
true and correct transcript therefrom and of the whole 
thereof. 

In testimony whereof, I have hereunto set my hand 
and affixed the seal of said Court, at Detroit, in said dis- 
trict, this 13th day of October, in the year of our Lord 
one thousand nine hundred and five, and of the Inde- 
pendence of the United States of America the one hun- 
dred and thirtieth. 

Walter S. Harsh a, 
Clerk. 
By Adelaide Anderson Voorheis, 

Deputy Clerk. 




(fttrnrit Court of tlj? Ilttttrn States 



District of Indiana 



NATIONAL BISCUIT COMPANY 

Complainant, 
vs. 

ISAAC F. WHITESIDE 

Defendant. 



IN EQUITY 
No. 10410 



DEMURRER AND ORDER 
OVERRULING DEMURRER 



OFFIELD, TOWLE & LINTHICUM 

Solicitors for Complainant. 

W. H. H. MILLER 
CHARLES K. OFFIELD 
EARL D. BABST 

Of Counsel for Complainant. 

HARVEY, PICKENS, COX & KAHN 

Solicitors for Defendant. 

KEALING & HUGG 

BAKEWELL & CORNWALL 

Of Counsel for Defendant. 



NATIONAL BISCUIT COMPANY vs. WHITESIDE 141 

DEMURRER. 

Circuit Court of the United States. 
District of Indiana. 



National Biscuit Company, 
Complainant, 
vs. 
Isaac F. Whiteside, 

Defendant. 



In Equity. 
fNo. 10410. 



The Demurrer of Isaac F. Whiteside, the defendant 
above named to the Bill of Complaint of National Biscuit 
Company, complainant. 

This defendant, Isaac F. Whiteside, by protestation, 
not confessing or acknowledging all or any of the mat- 
ters and things in the said complainant's bill to be true, 
in such manner and form as the same are therein set 
forth and alleged, doth demur thereto and for cause of 
demurrer showeth: 

1. That the said complainant has not in and by its 
said bill made or stated any such cause as doth or ought 
to entitle it to any such discovery or relief as thereby 
sought and prayed for from or against this defendant. 

2. That it does not appear from the facts stated in 
said bill that the complainant is entitled to the exclusive 
use of what is designated in said bill as complainant's 
"In-er-seal" trade-mark. 

3. That it does not appear from the allegations of 
said bill, or from the exhibits therein referred to, that 
defendant has infringed and is now infringing any ex- 
clusive right of complainant in and to the ''Tn-er-seal" 
mark referred to in the bill of complaint. 

4. That it does not appear from the facts stated in 
the bill of complaint herein that complainant is entitled 



142 NATIONAL BISCUIT COMPANY vs. WHITESIDE 

to the exclusive use of what is herein designated as 
complainant's "Uneeda" or "Uneeda Biscuit" trade- 
mark or trade-name. 

5. That it does not appear from said bill of com- 
plaint, or from the exhibits referred to therein, that de- 
fendant has infringed any exclusive right of complainant 
in the name "Uneeda" or "Uneeda Biscuit." 

6. That as to the things designated as "the nine re- 
maining complainant's exhibits," referred to in para- 
graph sixteen of the bill, it does not appear from said 
bill — 

(a) That the same are described in said bill with 
sufficient particularity for the defendant to answer in 
respect to the same ; 

(b) That it does not appear from said bill that com- 
plainant has any exclusive right with respect to any or 
all of said exhibits; 

(c) That it does not appear from said bill, or from 
the exhibits referred to therein, that defendant has in- 
fringed, or is now infringing, any exclusive rights of 
comxjlainant with respect to any or all of said exhibits. 

7. That complainant has not in and by its bill of com- 
plaint shown that it is entitled to the sole and exclusive 
use of the form and arrangement and dress of the pack- 
age referred to in paragraph "ninth" of the bill of com- 
plaint as "Complainant's Exhibit Carton Trade Name 
Uneeda Biscuit and Wrapper"; nor has complainant 
shown by its said bill that defendant has infringed, and 
is now infringing, any exclusive right of complainant in 
and to the same. 

8. That it does not appear from the said bill of com- 
plaint that complainant is entitled to the exclusive use of 
the name "Jersey Butter" as applied to crackers or 
biscuits ; nor does it appear from said bill that defendant 
has infringed, or that defendant is now infringing, any 



NATIONAL BISCUIT COMPANY vs. WHITESIDE 



143 



exclusive right of complainant in the name "Jersey But- 
ter" as applied to crackers or biscuit. 

9. That it does not appear from said bill that com- 
plainant is entitled to the exclusive use of the figure of a 
cow stamped or marked on crackers ; nor does it appear 
from the bill that defendant has infringed, or is now in- 
fringing, any exclusive right of complainant in respect 
to the figure of a cow. stamped or marked on crackers or 
biscuit. 

10. That it does not appear from the bill of com- 
plaint that complainant is entitled to the exclusive use 
of the word "Crisp" or "Crispy" as applied to crackers 
or biscuit ; nor does it appear from said bill that defend- 
ant has infringed, or that defendant is now infringing, 
any exclusive right of complainant in and to the word 
"Crisp" or "Crispy" as a mark or name for crackers 
or biscuit. 

11. That as to all of said bill which undertakes to 
claim infringement by defendant in respect to complain- 
ant's alleged cartons or packages referred to therein as 
"Complainant's Exhibits Cartons Baking Products, 
Numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, 10- and 11," "Complain- 
ant's Exhibit Complainant's Carton Trade Name Uneeda 
Biscuit and Wrapper," and "Complainant's Exhibit 
Complainant's In-er-seal trade-mark," complainant is 
not in equity with clean hands and is not entitled to any 
equitable relief in this cause, as it appears from said ex- 
hibits, which are referred to in the bill and made part 
thereof by the allegations of the bill, as well as from mat- 
ters of which this Court will take judicial notice, that 
as to each of said cartons it distinctly appears that the 
same (on the outer wrapper thereof) is now being repre- 
sented by complainant as patented March 28, 1899 
(which is the date of the Peters U. S. Patent No. u"21,974 
relating to cartons). Whereas, as appears from Vol- 
ume 125 of the Federal Reporter, between pages 001 



144 NATIONAL BISCUIT COMPANY vs. WHITESIDE 

and 609 thereof .(of which this Court will take judicial 
notice), on the 23rd day of November, 1903, the said 
Peters Patent for Carton was declared invalid by the 
United States Circuit Court of Appeals for the Eighth 
Circuit, on the ground that the same failed to disclose 
patentable novelty ; and that it appears from the opinion, 
of the United States Circuit Court in said cause (120 Fed- 
eral Reporter, between pages 679 and 687), which opinion 
of the United States Circuit Court was reversed by the 
United States Circuit Court of Appeals for the Eighth 
Circuit in the case reported in 125 Federal Eeporter, 
supra, that the complainant in this cause, the National 
Biscuit Company, was, at the time said cause of Peters 
vs. Union Biscuit Company (reported in the Federal Re- 
porter, volumes 120 and 125, supra) was pending and 
prior thereto, the exclusive licensee of Peters, the pat- 
entee of said patent No. 621,974, of March 28, 1899, so 
far as said patent might be used for packing bakery 
products. Therefore, it appears from the said bill of 
complaint, from complainant's exhibits above referred 
to, and from matters of which this Court will take ju- 
dicial notice, that at the time of filing the bill in this 
cause and since the decision of the United States Circuit 
Court of Appeals for the Eighth Circuit, rendered No- 
vember 23, 1903, in said cause of Union Biscuit Company, 
appellant, vs. Peters, appellee (see 125 Federal Reporter, 
601-609), that complainant is still holding out to the 
public that said exhibit cartons or packages are pro- 
tected by said Peters' United States letters patent, 
dated March 28, 1899, whereas, at the time of filing this 
bill of complaint and said exhibits, and since about one 
year before the filing of the same, the said Peters' Pat- 
ent of March 28, 1899, has been adjudged of no force and 
effect by the United States Circuit Court of Appeals for 
the Eighth Circuit, which opinion and the decree entered 
in pursuance of the same is now, and was at the time of 



NATIONAL BISCUIT COMPANY vs. WHITESIDE 145 

filing the bill of complaint herein, in full force and effect, 
as complainant well knew at the time of filing the bill of 
complaint herein. 

12. That it appears from said bill and the exhibits 
filed therewith, as well as from matters of which this 
Court will take judicial notice, that this defendant has 
not infringed the alleged trade-marks, trade-names or 
wrappers of complainant, there not being such similarity 
between the alleged trade-marks, trade-names or wrap- 
pers of complainant and those of defendant, as shown 
by the exhibits filed in connection with complainant's bill, 
as would deceive an ordinary purchaser using reasonable 
care so that he would buy the goods of defendant believ- 
ing them to be the goods of complainant. 

13. That complainant has not in and by its said bill 
stated such a case as doth or ought to entitle it to any 
equitable relief by way of injunction as against defend- 
ant, it not appearing from said bill that at the time of 
filing the same this defendant w 7 as continuing to do the 
acts of which complaint is made as acts done in the past 
by this defendant, nor does it appear from said bill that 
defendant is threatening to do, or about to do, the alleged 
acts complained of as having been done by the defend- 
ant. 

14. As to the allegations of fraud in the bill of com- 
plaint, they are immaterial, since it appears from the 
whole bill, and the exhibits filed therewith, notwithstand- 
ing the epithets as to fraud used therein, that — 

(a) Complainant has no standing in a court of equity; 

(b) Complainant has no exclusive rights which have 
been violated by defendant ; 

(c) Raid allegations of fraud, taken in connection witli 
the bill and exhibits filed therewith, do not connect de- 



146 NATIONAL BISCUIT COMPANY vs. WHITESIDE 

fendant with any specific acts which make him responsi- 
ble to complainant in this action. 

15. That the hill fails to show such facts in regard to 
the use by defendant of any package, carton, trade-mark 
or wrapper as constitute unfair competition in trade on 
the part of defendant in respect to any article sold by 
complainant, in that it does not appear from said bill 
that any article made and sold by defendant has been 
sold, or is likely to be sold, to any one as and for the 
goods of the complainant. 

16. That as to paragraph "fourteen" of the bill, it 
does not constitute any cause of action, nor does it con- 
stitute any inducement to any cause of action, since it 
does not appear therefrom that rf defendant did employ 
persons formerly in the employment of complainant, he 
thereby did an unlawful thing, or anything the doing of 
which can be taken cognizance of by this Court in this 
action; it does not appear from the allegations of para- 
graph "fourteen" of the bill that the said former em- 
ployees of complainant were not free agents, free to 
take employment with others when and where they might 
see fit. 

17. Referring to paragraph "twentieth" of the bill of 
complaint, defendant demurs thereto on the ground that 
it does not appear from the allegations of the bill in that 
paragraph or elsewhere that complainant is entitled to 
the exclusive use of the certain metallic rack or holder 
therein referred to and marked "Complainant's Exhibit 
Complainant's Eetail Grocer Carton Exhibit Rack"; nor 
does it appear from the bill of complaint that defendant 
has infringed any exclusive rights of the complainant in 
and to said rack or holder. 

18. That notwithstanding the allegations of the bill 



NATIONAL BISCUIT COMPANY vs. WHITESIDE 



147 



of complaint herein as to defendant having originally 
been engaged wholly in the manufacture of bread and 
afterwards engaged in the manufacture of crackers and 
biscuit, it does not appear that defendant, by reason of 
such fact, is liable to the complainant in this suit; since 
it does not appear from the allegations of the bill of com- 
plaint, nor could it be recognized in law as a sound 
principle if it do appear from the bill of complaint that 
complainant is entitled to the exclusive monoply in the 
manufacture and sale of crackers and biscuit. 

19. That as to the allegations contained in " twenty- 
fifth " and "twenty-sixth" paragraphs of the bill, the 
same constitute no cause of action, neither do they con- 
stitute any inducement to any cause of action, against this 
defendant, and are mere surplusage, for the following 
reasons : 

(a) The defendant is not shown to be a party, nor is 
defendant shown to be in privity with any party, to any 
suit stated or referred to in either of said clauses of the 
bill; 

(b) It appears from said decisions or decrees in all of 
said cases (if the Court chooses to refer to the same) that 
the facts in each and all of said cases are utterly and 
entirely different from the facts in the case presented by 
the bill in this case; 

(c) That the question as to defendant's liability in 
this action is to be determined by the facts in this case ; 
and, on this demurrer, it clearly appears that complainant 
has stated no cause of action, no matter whether or not, in 
other cases against different defendants, under totally 
different states of facts, complainant has been able to 
state and establish causes of action. 

Wherefore, and for divers other good causes of de- 
murrer appearing in the said bill, this defendant demurs 
thereto and humbly demands the judgment of this Court 



148 NATIONAL BISCUIT COMPANY vs. WHITESIDE 

whether he shall be compelled to make any further or 
other answer to the said bill, and prays to be hence dis- 
missed with his costs and charges in this behalf most 
wrongfully sustained. 

Harvey, Pickens, Cox & Kahn, 

Solicitors for Defendant, 
Kealing & Hugg, 
Bakewell & Cornwall, 
Paul Bakewell, 

Of Counsel for Defendant. 



State of Missouri,) 



City of St. Louis. \ ss * 



Isaac F. Whiteside, being duly sworn, on his oath 
states that he is the defendant above named, and that the 
foregoing demurrer is not interposed for delay. 

Isaac F. Whiteside. 

Sworn to and subscribed before me this 3rd day of 
February, 1905. 

My Term expires 17th February, 1905. 

George Bakewell, 
Notary Public. 



NATIONAL BISCUIT COMPANY vs. WHITESIDE 



149 



ORDER OVERRULING DEMURRER. 

In the Circuit Court of the United States 

For the District of Indiana. 

May Term, 1905. June 17th, A. D. 1905. 

Before the Honorable Albert B. Anderson, Judge. 

National Biscuit Company ^ 

vs. f No. 10,410 Chancery. 

Isaac F. Whiteside. J 

Come now the parties by their respective solicitors, and 
thereupon the Court having heard the argument of Coun- 
sel and being sufficiently advised in the premises doth now 
overrule the demurrer to the bill of complaint herein. 

And the defendant is ruled to answer by the first Mon- 
day of September next. 



United States of America, . , 
District of Indiana. 



1 



I, Noble C. Butler, Clerk of the Circuit Court of the 
United States for the District of Indiana, do hereby certi- 
fy that the above and foregoing is a full, true and com- 
plete copy of an order entered in said court on the 17th 



150 



NATIONAL BISCUIT COMPANY 



WHITESIDE 



day of June, 1905, in the cause entitled National Biscuit 
Company vs. Isaac F. Whiteside, as fully as the same 
appears of record in my office. 

Witness my hand and the seal of said court, at In- 
dianapolis in said District this 1st day of November, A. 
D. 1905. 

Noble C. Butler, 
Clerk. 




NATIONAL BISCUIT COMPANY vs. WHITESIDE 



151 





152 



NATIONAL BISCUIT COMPANY vs. WHITESIDE 





NATIONAL BISCUIT COMPANY VS. WHITESIDE 



153 





154 



NATIONAL BISCUIT COMPANY vs. WHITESIDE 



k\ - V^ -v <^t ^ 





NATIONAL BISCUIT COMPANY vs. WHITESIDE 



155 






,£&«■«« "*"*" 




A/AT/OA^i 



erscvir Compaq 




156 



RATIONAL BISCUIT COWAXI , WH1TESE ;. 





^WVT^SXO^i ~\, 







NATIONAL BISCUIT ( 



OMI'ANY „. WHITESIDE 



157 







Qx& tare, ttes 







c^ c 



WRGOODNEsTSAKrMT 

Oyster&3 



158 



NATIONAL BISCUIT COMPANY 08. WHITESIDE 





NATIONAL BISCUIT COMPANY vs. WHITESIDE 



159 





160 



NATIONAL BISCUIT COMPANY vs. WHITESIDE 





NATIONAL BISCUIT COMPANY vs. WHITESIDE 



161 





162 NATIONAL BISCUIT COMPANY vs. WHITESIDE 

STIPULATION. 

United States Circuit Court, 

District of Indiana. 

National Biscuit Company, 
Complainant, 

ViS. 

Isaac P. Whiteside, 

Defendant. 

St. Louis, November 9, 1906. 

A settlement of the above-entitled case is agreed to 
between the parties complainant and defendant, as fol- 
lows : 

The original package exhibits and samples of loose 
crackers referred to in the bill of complaint in this case 
and made part thereof having been produced for the pur- 
pose of inspection by both parties, it is agreed as follows : 

That as to Mothers Biscuit package marked "Com- 
plainant's Exhibit, Defendant's Infringing Carton No. 
1," it is agreed that Defendant shall abandon the use of 
the red color on the end seal, and instead of the red col- 
ored end seal shall use an end seal of yellows 

The color of the wrapper shall be changed from blue 
to green. A sample of the changed form of carton to be 
used by the Defendant is hereto attached and marked 
"Exhibit A." 

As to Defendant's Graham Crackers complained of in 
this suit, wmich is marked "Complainant's Exhibit, De- 
fendant's Infringing Carton No. 2," and w r hich is pro- 
vided with a red wrapper, it is agreed that the Defendant 
shall change the wrapper from red to brown, and substi 
tute a yellow end seal for the red end seal. A sample of 



NATIONAL BISCUIT COMPANY vs. WHITESIDE 



163 



the change agreed upon is hereto attached and marked 
"Exhibit B." 

As to Defendant's package of Imperial Toast marked 
"Complainant's Exhibit, Defendant's Infringing Carton 
No. 3," Defendant is to abandon the wrapper and the 
name Imperial Toast. 

As to Defendant's Oatmeal Cracker package marked 
"Complainant's Exhibit, Defendant's Infringing Carton 
No. 4, ' ' which is provided with a green wrapper with red 
panels and with red end seals, it is agreed that the de- 
fendant shall abandon the use of that wrapper as w T ell as 
the red colored end seals; but nothing in this is to be 
construed as preventing the Defendant from using the 
word ' ' oatmeal ' ' in connection wdth his crackers, or from 
using the name or phrase "For Goodness Sake," or from 
using his own name in connection with oatmeal crackers. 

As to "Complainant's Exhibit, Defendant's Infring- 
ing Carton No. 5" (Kentucky Flakes), it is understood 
and agreed that the Defendant shall substitute a yellow 
colored end seal for the red end seal on that exhibit, and 
change the body color of the wrapper, which in said ex- 
hibit is white, from white to a delicate blue color. 

As to "Complainant's Exhibit, Defendant's Infring- 
ing Carton No. 6," which is Whiteside's Oyster Cracker, 
and is of a gray or slate color with red colored end seals, 
it is agreed that Defendant, from and after January 1, 
1907, shall change the body color of the said wrapper 
from a gray to a light blue color, the red end seal for 
such packages having already been changed by the De- 
fendant from a red color to a yellow color. Except as 
above stated, the printed matter on the said carton is to 
be the same as on the said exhibit, should the Defendant 
desire to use the lettering on that exhibit. 

As to "Complainant's Exhibit, Defendant's Infring- 
ing Carton No. 7," being for Butter Thin crackers, it is 



164 



NATIONAL BISCUIT COMPANY vs. WHITESIDE 



understood and agreed that the Defendant has aban- 
doned that package. 

As to "Complainant's Exhibit, Defendant's Infring- 
ing Carton No. 8," which is for Whiteside's Butter crack- 
ers, it is agreed that from and after this date the Defend- 
ant shall not use a red end seal and substitute therefor an 
end seal of yellow color. 

As to "Complainant's Exhibit, Defendant's Infring- 
ing Carton No. 9" (Mamma's Ginger Wafers), it is 
agreed that the Defendant shall change his red end seal to 
an end seal of yellow color. 

As to "Complainant's Exhibit, Defendant's Infring- 
ing Carton No. 10" (Whiteside's Milk Biscuit), it is 
agreed that the defendant shall change his red colored 
end seal to a yellow colored end seal. 

As to "Complainant's Exhibit, Defendant's Infring- 
ing Carton No. 11" (Whiteside's Cracker Meal package), 
it is agreed that the defendant shall, on or before Janu- 
ary 1, 1907, make the following changes in the carton or 
wrapper : Change the outer wrapper to a yellow color and 
substitute new directions and ornamental designs on the 
said wrapper. It is also understood and agreed that the 
defendant, as to the last named carton and wrapper, has 
changed the red end seal to a yellow colored end seal. 

As to the separate cracker exhibits in this case, it is 
agreed that on or before January 1, 1907, the defend- 
ant shall take off from said cracker the name ' ' Crispy ' ' 
and change the form of said cracker from a six-cornered 
cracker to a three-cornered cracker, and abandon the 
word "Crispy" in connection with bakery products from 
and after January 1, 1907. 

As to "Complainant's Exhibit, Defendant's Infring- 
ing Jersey Butter Cracker," it is agreed that on or be- 
fore January 1, 1907, the defendant shall take off from 
that cracker the picture of a cow, and abandon the use 



NATIONAL BISCUIT COMPANY vs. WHITESIDE 



165 



of the word "Jersey" in connection with the wrappers, 
boxes or display cans, or in any way in connection with 
the manufacture of crackers. 

It is also understood and agreed that the exhibits 
which have been withdrawn by the Complainant and pro- 
duced here in connection with this settlement, and which 
are referred to in the bill of complaint, shall be returned 
to the Court so as to form part of the record in this case. 

It is also agreed that from this date on the defendant 
shall abandon the use of red colored end seals in con- 
nection with any bakery products manufactured or sold 
by the defendant, and that instead of red colored end 
seals he shall use a yellow colored end seal, or some color 
distinctly different from red. 

It is also agreed that the taxable costs in this suit 
shall be paid by the defendant. 

It is also agreed that in settlement of all claims for 
profits and damages on account of past infringements 
alleged in the bill of complaint herein, the defendant has 
paid to the complainant a sum of money satisfactory to 
the complainant, receipt of which is hereby acknowledged 
by the complainant. 

It is also agreed that a consent decree for a perpetual 
injunction, consistent with this settlement, shall go 
against the defendant in respect to the packages herein- 
before specified, with the understanding that that injunc- 
tion shall be suspended until January 1, 1907, in respect 
to certain of the packages specified herein and as fully 
explained herein; and that, the changes in the packages 
herein specified being made by the defendant, it shall not 
be contended by the complainant, at any time, that the 
packages, so changed as specified herein, are within the 
scope of any injunction that may be entered in this case 
in pursuance of this agreement. 






166 NATIONAL BISCUIT COMPANY vs. WHITESIDE 

Executed in triplicate at St. Louis, Missouri, this 9th 
day of November, 1906. 

Eabl D. Babst 

OfFIELD, TOWLE & LlNTHICUM 

Solicitors and of Counsel for 
National Biscuit Company. 

Paul Bakewelol 
Solicitor and of Counsel for 
Isaac F. Whiteside. 
W. H. H. Miller 

Of Counsel for Complainant. 

L. M. Harvey 

Of Counsel for Defendant. 



NATIONAL BISCUIT COMPANY vs. WHITESIDE 



167 



FINAL DECREE. 

In the Circuit Couet of the United States. 

For the District of Indiana. 

November Term 1906. December 10th, 1906. 

Before Honorable Albert B. Anderson, Judge. 



National Biscuit Company, 
Complainant, 
v. 
Isaac F. Whiteside, 

Defendant. 



No. 10410. 



This cause coming on to be heard upon the pleadings 
and on the proofs taken on behalf of the Complainant, 
Messrs. Miller, Shirley & Miller and Messrs. C. K. Offield 
and Earl D. Babst appearing on behalf of Complainant 
and Messrs. Harvey, Pickens, Cox & Kahn and Mr. Paul 
Bakewell in behalf of the Defendant, and the Defendant 
not desiring to further contest this cause, a settlement 
having been made between the parties, it is therefore 
ordered, adjudged and decreed as follows : 

1. That a settlement of damages and profits having 
been made by the parties and such damages and profits 
paid under such settlement, that no reference to the 
Master is therefore made. 

2. That the taxable costs in this case, which it is 
agreed between counsel in this case amount to $140.35, 
have been paid by the Defendant. 






168 NATIONAL BISCUIT COMPANY vs. WHITESIDE 

3. That an injunction issue according to the prayer 
of Paragraph 1 of Clause 3 of the bill of complaint in this 
case as against carton exhibits Nos. 1 to 11 inclusive and 
the two individual cracker exhibits, " Crispy' ' and "Jer- 
sey Butter ;" but such injunction is not to take effect or 
be served until January 1, 1907. 

4. That this decree is therefore final. 



United States of America,! 
District of Indiana, ] 

I, Noble C. Butler, Clerk of the Circuit Court of the 
United States within and for said district, do hereby 
certify that the above and foregoing are full and true 
copies of the stipulation filed and the final decree entered 
on the 10th day of December, 1906, in the case of the 
National Biscuit Company against Isaac F. Whiteside, as 
fully as the same appear upon the files and records now 
in my office. 

Witness my hand and the seal of said Court, at In- 
dianapolis in said district this 12th day of December, 
1906. 

Noble C. Butler, 

Clerk. 




NATIONAL BISCUIT COMPANY vs. WHITKSIDE 169 

INJUNCTION. 

In the Circuit Court of the United States, 
For the District of Indiana. 

THE UNITED STATES OF AMEEICA. 

To Isaac F. Whiteside, his servants, agents and em- 
ployees, and all claiming or holding through or under him, 
Greeting : 

You, and each of you, are hereby strictly restrained 
and perpetually enjoined from in any manner whatso- 
ever handling, advertising or selling- packages or cartons 
containing bakery products having upon the ends thereof 
any red seal with white line markings thereon, or red 
seal substantially like the seal or Trade Mark of the 
National Biscuit Company, or from making, using, sell- 
ing or handling cartons like the National Biscuit Com- 
pany's carton containing the National Biscuit Company's 
Trade Name "Uneeda Biscuit" with wrapper accompani- 
ment as shown in the National Biscuit Company's ex- 
hibit of the same in the cause in said court entitled the 
National Biscuit Company against Isaac F. Whiteside. 
No. 10,410, or the use of the word "Biscuit" upon a white 
parallelogram, as shown in Complainant's exhibit De- 
fendant's Infringing Carton No. 1, in said cause, whether 
preceded by the word "Mothers" or any word associated 
therewith, or from the use of any wrapper application 
similar to or substantially like the wrapper application 
upon the National Biscuit Company's "Uneeda Biscuit' 1 
package; or from the use of any wrapper or red body 
color like or similar to the Graham Wrapper of red body 
color of the National Biscuit Company, shown in Com- 
plainant's Exhibit Carton Bakery Product No. 2, in said 
cause of the National Biscuil Company against Isaac 1\ 



170 NATIONAL BISCUIT COMPANY vs. WHITESIDE 

Whiteside, No. 10410, or from in any manner copying or 
simulating the other carton exhibits of the National Bis- 
cuit Company with its wrapper accompaniment and red 
seal thereon, as shown and identified by the various ex- 
hibits filed in said above entitled cause; or from selling 
crackers in bulk like Complainant's Exhibit Complain- 
ant's Jersey Butter Cracker, and Complainant's Exhibit 
Complainant's Crispy Cracker, filed in said above en- 
titled cause ; and from violating and infringing the rights 
of the said National Biscuit Company as hereinabove set 
forth. 

Whereof you are not to fail at your peril. 

Witness the Honorable Melville W. Fuller, Chief 
Justice of the Supreme Court of the United States and 
the seal of said Circuit Court at Indianapolis in said 
District, this 1st day of January, A. D. 1907. 

Noble C. Butler, 

Clerk. 




NATIONAL BISCUIT COMPANY vs. WHITESIDE 171 

MARSHAL'S RETURN. 

United States of America,) 



District of Indiana. \ 



ss. 



Received this writ at Indianapolis, Jany. 5th, 1907, 
and served on the within named Isaac F. Whiteside, by 
reading to and in his hearing at JefTersonville, Clark 
County, Indiana, Jany. 7th, 1907, and by handing him 
copy of same on Jany. 8th, 1907. 

Henry C. Pettit, U. S. Marshal, 

By Alonzo Boyd, Deputy. 



United States of America,} 
District of Indiana. \ 



ss. 



I, Noble C. Butler, Clerk of the Circuit Court of the 
United States for the District of Indiana, do hereby cer- 
tify that the above and foregoing is a full, true and com- 
plete copy of the writ of injunction and return of the 
marshal thereon, filed in said court on the 11th day of 
January, 1907, in the cause of National Biscuit Company 
vs. Isaac F. Whiteside, No. 10410, as fully as the same 
remains on file in my office. 

Witness my hand and the seal of said Court, at In- 
dianapolis in said District, this 11th day of January, 
A. D. 1907. 

Noble C. Butler, 

Clerk. 




Jtt Cljattr?nj of Nero lerawj 



Between 

NATIONAL BISCUIT COMPANY 

Complainant, 
and 

PACIFIC COAST BISCUIT COMPANY, 
CHARLES M. WARNER, JOHN C. HAN= 
RAHAN, WILLIAM M. LAWS, HER= 
MAN WITTENBERG, MORITZ THOM= 
SEN, CHARLES HOTCHKISS, and A. 
M. BROOKES, Officers and Directors of 
said PACIFIC COAST BISCUIT COM= 
PANY 

Defendants. 



On Bill 

for Relief 



CONCLUSIONS 



VREDENBURGH, WALL & CAREY 

Solicitors for Complainant 

CHARLES K. OFFIELD 
EARL D. BABST 

Of Counsel 

COLLINS & CORBIN 

Solicitors for Defendants 

WILLIAM D. FENTON 

Of Counsel 



174 



NATIONAL BISCUIT COMPANY vs. 
PACIFIC COAST BISCUIT COMPANY 





NATIONAL BISCUIT COMPANY vs. 
PACIFIC COAST BISCUIT COMPANY 



175 



Between 

National Biscuit Company 

Complainant, 

and 

Pacific Coast Biscuit Company, 
and Charles M. Warner, John 
C. Hanrahan, William M. 
Laws, Herman Wittenberg, 
Moritz Thomsen, Cha r 1 e s 
Hotchkiss and A. M. Brookes, 
Officers and Directors of said 
Pacific Coast Biscuit Company 
Defendants. 



On Bill, &c. 
CONCLUSIONS. 



On final hearing on pleadings and proofs. 

Messrs. Vredenburgh, Wall & Carey, Mr. Charles K. 
Offleld (of the Illinois Bar) and Mr. Earl D. Babst (of 
the New York Bar), for complainants. 

Messrs. Collins & Corbin and Mr. William D. Fenton 
(of the Oregon Bar), for defendants. 
Walker, C. 

The object of this bill is to restrain unfair competi- 
tion in trade. 

The complainant and defendant companies are cor- 
porations organized under the laws of this state. Both 
are engaged in the same line of trade, the manufacture 
and sale of bakery products. The business of the de- 
fendant company is confined to the Pacific Coast States 
and adjacent territory, while the field of activity of the 
complainant company is nation-wide. The complainant's 
career commenced in 1898, when it acquired some of the 
leading bakery-plants in the country, with which it be- 



I na NATIONAL BISCUIT COMPANY vs. 

- 1 ' U PACIFIC COAST BISCUIT COMPANY 

gan oj)erations. It already had a market for its goods, 
brought to it by these plants, and by the exercise of a su- 
perior order of scientific and mechanical intelligence and 
of commercial acumen and industry, acquired a wide and 
enviable reputation for the high quality of its products. 
A market for these wares was established in the defend- 
ant's territory shortly after the complainant started 
business in 1898. 

The principal innovation made in the bakery line by 
the complainant is that of housing and transmitting to 
the ultimate consumer bakery products with a minimum 
of deterioration, and practically as they leave the ovens. 
This is accomplished by the use of paper-cartons. Up to 
the complainant's advent, shipments were mainly in 
"bulk," that is, in barrels and wooden boxes. Paper- 
cartons, of the shoe-box style, with loose paper-lining, 
and hermetically sealed tin-boxes, were also used, but 
only to a very limited extent. The tin boxes were com- 
mercially too costly and the shipment in bulk was objec- 
tionable because of the tendency of the contents to ab- 
sorb moisture and deleterious and offensive odors, and 
to breakage. Incleanliness in the handling by the re- 
tailer was also to be reckoned with. 

The paper-cartons adopted by the complainant were 
much smaller than those theretofore used and were of a 
size to permit of sales at popular prices — five and ten 
cents per package. These cartons are constructed by 
superimposing upon the carton blank, made of card- 
board, a sheet of wax-paper of the size and shape of the 
blank, which when folded, form a unit-box, and, it is said, 
possess the quality and capacity of preserving the con- 
tents equal to the hermetically sealed tin-box. The car- 
tons are of various sizes and shapes, adapted to the 
forms of the proposed contents ; and to identify the con- 
tents as its products, and to distinguish the same from 
those of other dealers, the complainant adopted a trade- 



NATIONAL BISCUIT COMPANY vs. 177 

PACIFIC COAST BISCUIT COMPANY ±l ■ 

mark and a variety of trade-names for its various pro- 
ducts, and peculiar and distinctive labels and wrappers 
to envelop the cartons, all of which, it is claimed, the de- 
fendant fraudulently simulated, to the injury and dam- 
age of the complainant's trade. 

The alleged infringement of fifteen widely different 
styles of cartons and carton-wrappers and applied trade- 
names, for as many kinds of crackers or biscuits; the 
methods of construction of the carton and of the form of 
bundle-package of assembled cartons, as well as the 
trade-mark, is involved in this litigation. 

The law relating to fraudulent or unfair competition 
between traders is so firmly established and has been so 
lucidly illustrated and defined by the courts of England 
and of this country, that extended citation of authorities 
will be profitless. The underlying principle that no man 
has a right to palm off his wares as those of another, 
thereby cheating the purchasing public and filching the 
business of a rival, is so essentially an element of nat- 
ural justice and so solidly imbedded in our jurispru- 
dence, that all that is necessary to quicken a court of 
equity is to show that in the particular instance the of- 
fense has been committed. The cases cited by counsel 
in their briefs exemplify the illimitable conditions and 
circumstances under which this simple doctrine, requir- 
ing men to be honest towards each other, may be in- 
voked. 

The case of Wirtz v. Eagle Bottling Company, 50 X. 
J. Eq., 164, is a striking example of the adaptation of the 
principle to unfair competition in the use of imitative 
labels and wrappers. The opinion in that en so so fully 
covers the whole scope of the law applicable to the facts 
presently to be considered, and furnishes so clear a 
guide, that I am persuaded to quote from it in extenso. 
The complainant, in that case, by his industry and Pair 
dealing, had built up a large and valuable trade as a 



17ft NATIONAL BISCUIT COMPANY vs. 

±i0 PACIFIC COAST BISCUIT COMPANY 

bottler of beer and identified his goods by a peculiar and 
distinctive label, which label the defendant substantially 
copied. Vice-Chancellor Van Fleet, in granting a pre- 
liminary injunction, subsequently made perpetual, at p. 
166, said: 

"If we speak with accuracy, these labels cannot be 
called trade-marks, but they serve substantially the same 
purpose. They are the marks by which the complainant's 
goods are distinguished in the market from all like goods 
put upon the market by other persons, and are, for that 
reason, according to many decisions, just as much under 
the protection of the law as trade-marks are. The law 
protects them for the same reasons and in precisely the 
same way that it does trade-marks. The leading prin- 
ciple of the law on this subject is, that no man should 
be permitted to sell his goods on the reputation which 
another dealer has established in the market for his 
goods, and this principle applies with equal force to the 
case where the goods of such other dealer are known in 
the market by a label as it does to the case where they 
are known by a mark which is strictly a trade-mark. No 
dealer can lawfully adopt the label of another dealer, or 
one so near like it as to lead the public to suppose that 
the article to which it is affixed was put upon the market 
by such other dealer. Miller Tobacco Manufactory v. 
Commerce, 16 Vr. 18, 24. The reasons upon 
which this rule rests were stated by Mr. Justice 
Knapp, in the case just cited, substantially as follows : 
While the markets are open and free to all, and 
fair competition should be encouraged, still every dealer 
must be required, for the protection of the public 
and to promote fair dealing, to depend for his success 
upon his own reputation and the quality of his own pro- 
ductions. If he were allowed to deal under false colors 
and sell his productions for those of others, the result 
would be that he would not only cheat the public, but also 
defraud him whose right place in the market he filled with 
spurious goods. Such competition would not be fair com- 
petition — it would be closer akin to piracy. 



NATIONAL BISCUIT COMPANY cs. 1 7Q 

PACIFIC COAST BISCUIT COMPANY " L ' t/ 

The defendant's labels were prepared under the direc- 
tion of its general manager * * * He further says, 
that in designing the defendant's labels he had no pur- 
pose or design of palming of! the defendant's goods for 
those of the complainant. Admitting all this to be true, it 
is manifest it constitutes no defense. The vital question 
in cases of this kind is not what did the defendant mean, 
but what has he done? The legal quality of an act, re- 
sulting in injury, must be decided not by the motive with 
which it was done, but by the consequences which have 
necessarily resulted from it. The law, in civil cases, does 
not attempt to penetrate the secret motive which induced 
the act brought in judgment, but judges of its legal quality 
solely by the consequences which have actually and 
necessarily proceeded from it. It is no less a dictate of 
justice, than of sound reason, that every person must be 
understood to have intended to do just what is the nat- 
ural consequence of his act deliberately done. 

* * * for it is a matter of common knowledge that 
the ordinary buyer does not, as a general rule, exercise 
as much caution in buying an article for which he pays 
a few pennies as he does in purchasing a more valuable 
thing. The instances are very rare, I suppose, where a 
purchaser exercises as much care in buying a bottle of 
beer as he does in buying a bottle of whiskey, a box of 
cigars, or a hat or a coat. 

* # # Where, as in this case, the subject-matter 
of the controversy is labels, and the question is, whether 
one is a fraudulent simulation of the other, the decision 
must always, to a large extent, be controlled by the evi- 
dence furnished by the labels themselves. As a general 
rule, they constitute the very best evidence of which the 
case is susceptible. That is the case here. A comparison 
of these labels, whether made singly or in a group, shows 
conclusively, as I think, that the use of the defendant's 
labels constituted a plain violation of the complainant 's 
right. It is difficult to believe that one set of labels could 
have been made so near an exact copy, in all their spe- 
cial characteristics, of another set without an effort at 
simulation." 

In 1900 the complainant, the National Biscuit Com- 
pany, adopted as its trade-mark a sign or symbol known 



1 on NATIONAL BISCUIT COMPANY OS. 

X - L PACIFIC COAST BISCUIT COMPANY 

in the trade as the "In-er-seal" or "In-er-seal trade- 
mark." This seal is square, and of a peculiar shade of 
red, with clipped corners and white lines thereon forming 
an ellipse, divided equally by a horizontal line, from 
which extends a perpendicular line halving the upper 
half of the ellipse, with two horizontal lines crossing the 
perpendicular line above the ellipse. This configuration 
of white lines on the seal is said to have been the sign 
and mark of the first printers in the early period of that 
art. taken by them from the Catholic church, and by the 
latter from Paganism, and signifies the triumph of the 
spiritual over the material world. These seals were 
placed upon each end of all the paper-cartons containing 
the bakery products placed on the market by the com- 
plainant, and in addition to the purpose they serve in 
sealing the cartons, are an attractive and conspicuous 
feature of the carton wrapper. 

The initial trade name coined and applied by the com- 
plainant to an important part of its cracker output is 
"Uneeda" or "Uneeda Biscuit." The association of the 
" In-er-seal " trade-mark and the name "Uneeda Biscuit" 
formed the slogan of the complainant's business. By the 
expenditure of a stupendous amount of money in lavish, 
but judicious, advertisement, they became known to al- 
most every man. woman and child in this country, as 
the identifying mark and name of the complainant's 
goods. I quite agree with the statement of one of the 
witnesses who testified, that "Uneeda Biscuit and the 
In-er-seal. it may be said, are woven into the fabric of 
the Xational Biscuit Company. In fact, they are the 
business. As to their value they are probably worth mil- 
lions of dollars to the Xational Biscuit Company. Its 
physical properties such as plants, machinery, and so 
forth, if destroyed, could be replaced within a reasonably 
short time, while the loss of the In-er-seal and Uneeda 



NATIONAL BISCUIT COMPANY vs. 1Q1 

PACIFIC COAST BISCUIT COMPANY ±0± 

Biscuit and the good-will that goes with them, would be, 
if not irretrievable, at least a very great calamity. ' ' 

The defendant, The Pacific Coast Biscuit Company, 
succeeded to the business of the Portland Cracker Com- 
pany in 1899. The latter named company had been en- 
gaged in the cracker baking business at Portland, Oregon, 
since 1886, and in the carrying on of its business used a 
variety of labels, some descriptive of the package con- 
tents and others to identify its various kinds of cracker 
and biscuit output, and to mark them as the product of 
that company, but none that bore any resemblance to 
the "In-er-seal," the label of the complainant; none 
square in shape, with clipped corners, a red field with 
white marking and applied to either end of paper-cartons 
of the dimensions of those of the complainant. When 
the defendant bought the property of the Portland 
Cracker Company it took over these seals and for a time 
used them, substituting only its name for that of its pre- 
decessor, until about the year 1903, when they were prac- 
tically discarded, and a seal known as "Gold Coast End 
Seal" was adopted, which was also far unlike the com- 
plainant's " In-er-seal. " In 1907 this one was also aban- 
doned, and a red-end seal termed "Swastika Ked-end 
Seal, ' ' with clipped corners and white line markings upon 
a back-ground of red exactly the same shade as the com- 
plainant's seal and which is the infringing seal com- 
plained of, was substituted. It is described in the record 
as a symbol of prehistoric origin, emblematic of a benef- 
icent Deity, eternal life, benediction and blessing, ixooA 
wishes and good augury, and was and is used by Indian 
basket makers and blanket weavers, potters, and silver- 
smiths, and is known as the Navajo Indian cross, and was 
well known and in use as a religious emblem in India 
fifteen centuries before the Christian era. Like the com 
plainant's " In-er-seal ' ' it is being used by the defendant 
on both ends of paper-cartons of identically the same size 



1 M NATIONAL BISCUIT COMPANY 

- 1 -- PACIFIC OAST BISCUIT COMPANY 

and shi - the complainant's cartons. The two labels, 

"In-er-seal" and the "Swastika" differ only in their 
markings. Laid side 1 si *, and disassociated from the 

cartons, the resemblance is not marked, but when the de- 
fendant's seals are applied to the end of rtons resem- 
bling, as tc size, -hap-, wrapper application, and euphony 
of coined names, the similitude is stinking, and when thus 
as- is of a character calculated to mislead and de- 

ceive the unwary and nnsnspecting | ser. 

The federal courts have had occasion, by injuncti 
to protect this complainant in its seal and seal applica- 
tion against an infringing seal, under circumstanoefi 
mnch like those present in this sase. 01 ': Baking Com- 
. Natit ' Biscuit C: . 127 Fed. Rep. 116; 

National Bisc t t [ y v. Suicl. 121 Fed. Rep. 1007. 

The claim of the defendant that it and its predeces- 
sor, the Portland Cracker Company, used a red-end se 
square in ontline with clipped corners, npon the end of 
cartons, to denote its wares, prior tc :i_e adoption by the 
complainant of its In--:-- :h. is not sustained by the tes- 
timony. Moreover, the red-end seals which were us* 
by the defendant were^ as I have already stated, dis- 
carded for the "Gold Coast seal" in 1903. 

Inspection and comparison of the cartons of the com- 
plainant and defendant, of the nomenclature and wrap- 
per embellishment, and of the red-end seal application, 
are sufficient to satisfy me of the copying by the defend- 
ant of the complainant's trade-name and carton and car- 
ton-wrappers. I can:;:: conveniently deal with the car- 
tons collectively, nor will it be possible, within the lim- 
its of these conclusions, to advert in detail to all of the 
points of similarity between the two sets of cartons, to 
which my attention has been called, and. therefore, ref- 
erence will only be made tc r h- prominent features. 

Generally, a? to size, shape and capacity | and the fif- 
teen carter- if the complainant differ in these respects). 



NATIONAL BISCUIT COMPANY vs. 1QO 

PACIFIC COAST BISCUIT COMPANY ±0 ° 

it may be said, that the defendant's cartons are exact and 
substantial counterparts of the complainant's. The red- 
end seal on both ends of the infringing cartons, and the 
superimposed wax-paper interior, are also uniform 
points of likeness. The resemblances in other respects, 
submitted by the complainant, I will take up in the order 
in which the infringements are charged in the bill. 

1. This relates to the red-end seal already disposed 
of. 

2. Complainant 's < ' UNEED A ; ' ' Defendant 's 
"ABETTA" BISCUIT. The wrappers of the two car- 
tons to which these words are applied are of a dark body 
color, with white parallelogram decorations. The style 
of type and the location of the display of the name of 
the biscuit and of the reading matter, is the same, and 
the latter conveys the same meaning. That the com- 
plainant is entitled to the exclusive use of this coined 
word, as applied to crackers or biscuits, seems to me to 
be beyond question, and this extends to any word sim- 
ilarly applied, which rings with the same tone. "Abetta" 
was coined by the defendant with knowledge of the use 
and application by the complainant of the suggestive 
name "Uneeda." This, coupled with the circumstances 
of two consecutive abandonments by the defendant of 
similar and graduating, but less offensive infringing 
cartons, and the obvious purpose of creating the impres- 
sion of an alliance between the two biscuits, and of su- 
periority in that of "Abetta" ( a better than Uneeda), 
evinces that the selection by the defendant of the word 
"Abetta" was intended to bring to it profit from a con- 
fused purchasing public. 

3. Complainant's "NABISCO"; Defendant's 
"PARFAIT" and "FIESTA." The word "Nabisco" 
is made up practically of the initial syllable of each of the 
words of "National Biscuit Company. " Both packages 



i ^>_i NATIONAL BISCUIT COMPANY vs. 

± °~ t PACIFIC COAST BISCUIT COMPANY 

are of tin. The contents of each is a sweet cracker. The 
color scheme of the wrappers is the same. It is of a 
white background with red and gold decorations, clearly 
a case of copying. 

4. Complainant's "SOCIAL TEA BISCUIT;" De- 
fendant's "ELITE BISCUIT." There is a pronounced 
resemblance in the decorations and appearance of these 
two packages. "Social" and "Elite" convey the same 
impression, and the substitution of the latter for the 
former on the defendant's cartons evinces but a single 
motive : confusion. 

5. Complainant's "UXEEDA MILK BISCUIT;" 
Defendant's "ABETTA MILK BISCUIT." These are 
as nearly alike as "two peas in a pod." The answer of 
the defendant respecting its carton and its statement 
that it has stopped making it, impliedly confesses copy- 
ing. 

6. Complainant 's ' ' OYSTEEETTES ; ' ' Defendant 's 
"TOKE POINT OYSTEEETTES." This word "oys- 
terettes" was coined by the complainant and applied to 
a particular brand of its crackers, in the year 1901. The 
word is indicative of the contents of the cartons. Up to 
1909 the complainant had marketed some fifty millions 
of these carton contents, under this trade-name, and, on 
the Pacific coast, in excess of a million. The claim of the 
defendant that its predecessor originated and applied 
this name to a brand of its goods prior to the adoption 
by the complainant, is not borne out by the testimony. 
The prominent eye-object on the carton is, of course, the 
word "Oysterettes." The defendant's "Toke Point" is 
printed with type comparatively obscure; the boxes are 
of the same size. 

7. Complainant's "FIG NEWTONS;" Defendant's 
"FIG SULTANA." The copying here is manifest. The 
body-color of the wrapper in each carton is white, with 



NATIONAL BISCUIT COMPANY vs. 1 0K 

PACIFIC COAST BISCUIT COMPANY ±0tJ 

gold scroll work embellishments and red-end seal. Ob- 
viously the defendant's carton is an imitation. 

8. Complainant's and Defendant's "MARSH-MAL- 
LOW DAINTIES. ' ' The complainant was the first to orig- 
inate and apply this trade-name to one of its carton bak- 
ery products. This was in 1905. Up to the time of the 
taking of the testimony in 1909, it had sold under this 
name some five million of these carton contents. The 
exact trade-name has been appropriated by the defendant, 
and is the subject of complaint. 

9. Complainant's "ZU ZU;" Defendant's "HOO 
HOO" GINGER-SNAPS. "Zu Zu" and "Hoo Hoo" are 
merely catch words, with the same general sound when 
spoken, and not widely different to the non-discriminat- 
ing when printed. The words respectively on the two 
cartons have the same general appearance, and with the 
box arrangement and red-end seals, show similarity, and 
leave the impression that imitation was intended. "Zu 
Zu," as a trade name was adopted by the complainant 
in 1901, and applied to ginger-snaps. The sale of these 
cartons to June, 1909, was approximately one hundred 
million, and over a million in the Pacific coast states. 
The defendant claims the right to the use of "Hoo Hoo" 
because of prior appropriation by its predecessor. The 
record does not satisfy me that this contention is well 
founded. 

10. Complainant's "FROTA'NA;" Defendant's 
"MARITANI" FRUIT BISCUIT. Similarity of size of 
cartons, of wrapper coloring, of red entering largely into 
the decorations, the red-end seal application, the fruit bis- 
cuit contents, and the confusion between the two names as 
to pronunciation of their ending syllables, taken as a 
whole, evidence copying. 

11. Complainant's and Defendant's "COCOANUT 
DATNTIES." This term was originated by the complain- 
ant as a mark for one of its products. The trade-name 



Iftfi NATIONAL BISCUIT COMPANY vs. 

XOU PACIFIC COAST BISCUIT COMPANY 

has been copied. Both cartons are of the same size. The 
general arrangement of the lettering, the light color of 
the two boxes and the red-end seal, all tend towards con- 
fusion. 

12. Complainant 's < < OLD TIME SUGAR COOKIES ; ' ' 
Defendant's "OLD FASHIONED SUGAR COOKIES." 
The only change made by the defendant in appropriating 
this trade-name is the substitution of the word "Fash- 
ioned ' ' for the word < ' Time ' ', both of which, in connection 
with the remainder of the name, have the same signifi- 
cance. The same size and shape of the carton, of the white 
colored wrappers, and the application of the red-end seal, 
complete the likeness. 

13. Complainant 's ' ' CELEBRATED ZWIEBACK ; ' ' 
Defendant's "GENUINE ZWIEBACK." These pack- 
ages are approximately of the same size and shape. The 
German and English printed matter bears comparatively 
the same appearance and meaning. Aside from this and 
the red-end seal application, there does not appear to be 
other similarity. 

14. Complainant's "FANCY ASSORTMENT;" De- 
fendant's "FANCY ASSORTED CAKES." The size 
and dress of these cartons have a single eye appearance. 
The term applied to the defendant's carried with it the 
same meaning as that adopted by the complainant. The 
decorations, as to red border-lines, are attracting simi- 
larities. 

15. Complainant's "OATMEAL CRACKERS;" De- 
fendant's "ABETTA OATMEAL CRACKERS." Both 
wrappers are green. The shade of the defendant's varies 
slightly from that of the complainant's. The prominent 
sight object on both is "Oatmeal Crackers." On the de- 
fendant 's in dim type and small print, apparently intend- 
ed not to be readily observed, is the word "Abetta." 

16. Complainant's and Defendant's "ANIMAL BOX." 



NATIONAL BISCUIT COMPANY vs. 1Q7 

PACIFIC COAST BISCUIT COMPANY A -° l 

These seem to be counterparts, even to the cord handle. 
Here the copying is complete. 

The history, as disclosed by the voluminous record, of 
the progressive steps of the defendant in the work of seal 
imitation, which culminated in the adoption of the ' ' Swas- 
tika ' ' seal, read in connection with the history relating to 
the constant advance in copying, and the gradual approach 
by the defendant in the use of cartons and wrappers, in 
appearance like those of the complainant, convinces me 
that the " Swastika' ' red-end seal was fashioned and ap- 
plied by the defendant to the ends of its cartons, and 
that these cartons and wrappers and trade-names, so 
much like those of the complainant, were simulated by 
the defendant for no other purpose than to mislead the 
public into purchasing its goods for those of the com- 
plainant's, and thus to purloin the complainant's busi- 
ness. I cannot escape this conclusion. 

The Portland Cracker Company and the defendant 
built up a cracker trade, with seals of a distinctive type, 
the more prominent and generally used one of which was 
a red seal with a boy sitting on a cracker-box, apparently 
exhibiting a cracker in each hand, dividing the words, 
"Our Brand." The defendant also created its own style 
of cartons and wrappers to individualize and distinguish 
its output. After the complainant entered the industry 
and introduced its novel and successful methods a cam- 
paign of simulation upon the part of the defendant began. 
Seals were abandoned and cartons and carton-wrappers 
of the defendant's selection and origin were from time to 
time discarded and eventually replaced by those the sub- 
ject of this suit. The deadly parallel between the entire 
line of the complainant's and defendant's seals, cartons, 
carton- wrappers and trade-names is so conspicuous that 
it requires no great perspicuity to observe thai the de- 
fendant's present methods of displaying and vending its 
wares are not attributable to any desire on its pari to 



1 UQ NATIONAL BISCUIT COMPANY vs. 

±CO PACIFIC LOAST BISCUIT COMPANY 

honestly build up a trade of its own, but rather that they 
are the culmination of a premeditated and single purpose 
of dealing under the cover of the good-will of a success- 
ful rival. 

It is unnecessary in these passing-off cases to find in- 
tentional fraud or that it be shown that anyone has been 
actually deceived to entitle a complainant to protection. 
It need not appear that there is precise copying of any 
one of the cartons of the complainant. In Ball v. Siegel, 
116 III., 137, it was said: 

"It is true, that in cases of this kind, as a general rule, 
exact similitude is not required to constitute an infringe- 
ment, or to entitle the complaining party to protection; 
but if the form, marks, contents, words, or other special 
arrangement or general appearance of the words of the 
alleged infringer's device are such as would be likely to 
mislead persons in the ordinary course of purchasing the 
goods, and induce them to suppose that they were pur- 
chasing the genuine article, then the similitude is such 
as entitles the injured party to equitable protection, if 
he takes seasonable measures to assert his rights and 
prevent their continued invasion. " 

And Vice Chancellor Van Fleet, in the Wirtz case (50 
N. J. Eq. at p. 168) puts it thus : 

"If it appears that the resemblance between the two 
labels is such that it is probable in the sale of the goods 
of the parties, the one will be mistaken for the other, 
enough is shown to make it the duty of the court to inter- 
fere. Edelsten v. Edelsten, 1 Be. G., J. & S. 185, 200. 
As was said by Mr. Justice Clifford, in McLean v. Flem- 
ing, 96 U. S. 245 — a case in which all the principles per- 
tinent to the case in hand were stated with great clear- 
ness and fullness — no rule, as to what degree of similar- 
ity must exist in order to constitute an infringement, can 
be laid down which may be applied to all cases. All 
that can be done in that record is to say, that where the 
similarity is sufficient to convey a false impression to the 
public mind, and is of a character to deceive the ordinary 



NATIONAL BISCUIT COMPANY vs. 1 QQ 

PACIFIC COAST BISCUIT COMPANY - LOi7 

purchaser, buying with the caution usually exercised in 
such transactions, there sufficient ground exists to entitle 
the injured person to redress. There are cases which lay 
down a more liberal rule in favor of persons claiming 
protection, and declare that if the resemblance is only 
such as is calculated to deceive the careless and unwary, 
a sufficient degree of similarity will exist to justify the 
court in interdicting the use of the counterfeit." 

The facts in the case sub judice, in my judgment, 
abundantly establish that the defendant's cartons and 
carton-wrappers, its seal trade-mark and trade-name, 
associated as they are, tend towards deceiving and are 
likely to deceive the purchasing public into the belief 
that the defendant's crackers and biscuits are those of 
the complainant. 

The carton formation and the bundle packages are 
not the subject of exclusive appropriation by the com- 
plainant, as devices to mark and indicate its products. 
The cartons known as the "Peter's Patent" were de- 
clared in Union Biscuit Company, et at. v. Peters, 125 
Fed. Rep. 601, as not a patentable invention. There can, 
of course, be no monopoly of the shape, size or capacity 
of a box. The lining of such boxes, with wax or paraffine 
paper superimposed thereon, and forming a unitary 
structure capable of inter-folding at the ends, for the 
enclosing of perishable goods, is a system or method 
which, it seems to me, must necessarily be common to all 
bakers. I have not a doubt but that the complainant 
used this form of package before the defendant, and 
that the secondary purpose of the defendant in adopt- 
ing it, was a part of its general plan of imitating the 
complainant's line of operation. Nor do T think it can 
be disputed that, in connection with the other simulations 
which have already been pointed out, this particular one 
failed of its mission. This may also be said o[' the bun- 
dle package. Instead of using wooden boxes to enclose for 



lOn NATIONAL BISCUIT COMPANY vs. 

J-^ PACIFIC COAST BISCUIT COMPANY 

shipment an assembled assortment of filled cartons, the 
complainant used paper shaped into box form. The only 
service in this case of the imitation of the carton pack- 
age and the bundle package, is to emphasize the trend of 
the defendant towards copying the complainant's style. 

There will be an injunction restraining the defendant, 
including the director-defendants (for the sake of con- 
venience I have heretofore referred to all of the defend- 
ants as one), from putting up and selling or offering for 
sale : 

(a) Any carton of bakery products having thereon an 
imitation of complainant's "Tn-er-seal" trade-mark, 
calculated to mislead or deceive, like the defendant's 
" Swastika" trade-mark. This shall not be construed to 
restrain the defendants from selling such cartons with 
their asserted trade-mark thereon, provided the trade- 
mark is so differentiated in general appearance and ap- 
plication, from the complainant's trade-mark, that it is 
not calculated to deceive the ultimate ordinary pur- 
chaser. 

(b) Any carton of bakery products having thereon 
an imitation of complainant's "Uneeda Biscuit" trade- 
name, calculated to mislead or deceive, like those on de- 
fendant's carton "Abetta Biscuit." 

(c) Any carton of bakery products having thereon an 
imitation of complainant's trade-names "Uneeda Milk 
Biscuit," "Oysterettes," "Marshmallow Dainties," 
"Coeoanut Dainties," and "Oatmeal Crackers," calcu- 
lated to mislead or deceive, like those on defendant's 
cartons respectively "Abetta Milk Biscuit," "Toke Point 
Oysterettes," "Marshmallow Dainties," "Coeoanut 
Dainties," and "Abetta Oatmeal Crackers." 

(d) The particular forms of cartons or packages re- 
ferred to in the bill of complaint and identified therein 
as "Complainant's Exhibit Defendant's Abetta Biscuit 



NATIONAL BISCUIT COMPANY vs. 1 Q1 

PACIFIC COAST BISCUIT COMPANY ±J± 

and Red-end Seal Carton No. 2," and " Complainant 's 
Exhibit Defendant's Infringing Packages Nos. 3, 4, 5, 6, 
7, 8, 9, 10, 11, 12, 13, 14, 15 and 16, respectively," which 
shall by reason of the collocation of size, shape, colors, let- 
tering, spacing and ornamentation, present a general ap- 
pearance as closely resembling complainant's exhibits re- 
spectively referred to in the bill of complaint and marked 
as " Complainant's Exhibit Complainant's Cartons 
Trade-name Uneeda Biscuit Wrapper No. 2," and "Com- 
plainant's Exhibit Complainant's Cartons Nos. 3, 4, 5, 6, 
7, 8, 9, 10, 11, 12, 13, 14, 15 and 16," as do the said de- 
fendant's respective infringing packages afore-mention- 
ed, but this shall not be construed as restraining the de- 
fendants from selling packages or cartons of the size, 
weight and shape of complainant's packages, nor from 
using the respective colors as wrappers for such pack- 
ages, provided such packages are so differentiated in 
general appearance from the said complainant's respec- 
tive packages that they are not calculated to deceive the 
ultimate ordinary purchaser. 

The complainant's prayer for an accounting will be 
denied, upon the grounds and for the reason stated by 
Vice Chancellor Stevenson in The International Silver 
Co. v. William II. Rogers Corporation, et al., 66 N. J. Eq. 
140. 

The complainant is entitled to costs. 



192 



NATIONAL BISCUIT COMPANY OS. 
PACIFIC COAST BISCUIT COMPANY 




I, Eobeet H. McAbams, Clerk of the 
Court of Chancery of the State of 
Xew Jersey, the same being a 
Court of Eecobd, do hereby cer- 
tify that the foregoing is a true 
copy of the conclusions, filed 
June 6th. 1914, in a cause wherein 
The National Biscuit Company is 
complainant and The Pacific Coast 
Biscuit Company, et a.L. are de- 
fendants, now on the files of my 
office. 



In testimony whereof I have hereto set my hand and 
affixed the seal of said court, at Trenton, this Sixth day 
of June, A. D., Nineteen hundred and fourteen. 

Bobert H. McAdayts. 

Clerk. 



NATIONAL BISCUIT COMPANY vs. 
PACIFIC COAST BISCUIT COMPANY 



193 



IN CHANCERY OF NEW JEESEY. 



Between 

National Biscuit Company, 

Complainant, 

and 

Pacific Coast Biscuit Company, 
Charles M. Warner, John C. 
Hanrahan, William M. Laws, 
Herman Wittenberg, Moritz 
Thomsen, Charles Hotchkiss 
and A. M. Brookes, Officers 
and Directors of said Pacific 
Coast Biscuit Company, 

Defendants. 



FINAL DECREE. 



This cause being opened to the Court by Vredenburgh, 
Wall & Carey, Solicitors for the Complainant, and in 
the presence of Charles K. Offield and Earl D. Babst of 
Counsel with the Complainant, and in the presence of 
Collins and Corbin, Solicitors for Defendants, and Wil- 
liam D. Fenton and Carl M. Herbert, of Counsel for the 
Defendants ; and the cause having been fully heard upon 
arguments, pleadings and proofs and printed briefs hav- 
ing been submitted; and the Court having fully consid- 
ered the same — 

It is, on this 29th day of September, 1914, by His 
Honor, Edwin Robert Walker, Chancellor of the State 
of New Jersey, Ordered, adjudged and decreed, and the 
Chancellor doth by virtue of the power and authority of 
the Court of Chancery of New Jersey, order, adjudge 
and decree as follows — 



1 n i NATIONAL BISCUIT COMPANY vs. 

1J_t PACIFIC COAST BISCUIT COMPANY 

First. — That the red end seal, known as the "In-er- 
seal", appearing upon the various carton bakery pro- 
ducts of the Complainant, with white line markings there- 
on, is a good and valid Trade Mark and the property of 
the Complainant, and that the red end seal appearing 
upon the ends of the carton products of Defendants is an 
infringement upon the Complainant's red end seal; 

Second. — That the Complainant's Trade Name or 
Trade Mark "Uneeda" is a good and valid Trade Mark 
and Xame, and the property of the Complainant, and 
that Defendants' name or mark "Abetta" Biscuit, with 
its placement upon Defendants' carton, is an infringe- 
ment of said Complainant's name or mark herein; 

Third. — That Complainant's Trade Mark or Trade 
Xame "Nabisco" is the mark or name of the Complain- 
ant, and that Defendants' carton or package, with the 
words "Parfait" and "Fiesta" in the same manner of 
display, are infringements of Complainant's Trade 
Mark or Xame "Nabisco" as applied, by the simulation 
therewith of the color scheme of the wrappers thereof; 

Fourth. — That the name, mark or words ''Social 
Tea" Biscuit as applied by the Complainants upon car- 
tons of crackers, is the property of said Complainant, 
together with the decoration and appearance of said 
package, and that the Defendants' carton or package 
"Elite" Biscuit is a simulation and copying of said 
name or word designation in the same manner of dis- 
play, of Complainant's on said package; 

Fifth. — That Complainant's Trade Xame, Mark or 
term "Uneeda Milk Biscuit", and the decoration and 
marking on Complainant's carton of biscuit products is 
the Trade Mark and Trade Name property of Com- 



NATIONAL BISCUIT COMPANY vs. 1 Qf=L 

PACIFIC COAST BISCUIT COMPANY ±V%J 

plainant and Defendants have markedly infringed the 
same by copying such carton in connection with the name 
"Abetta Milk Biscuit" in the same manner of display 
as Complainant's carton; 

Sixth. — That the word, term or name "Oysterettes" 
is the Trade Mark or Trade Name property of the Com- 
plainant, and the Defendants have infringed and copied 
the same in the same manner of display as Complain- 
ant's carton; 

Seventh. — That the Complainant is the owner of the 
Trade Mark or Trade Name "Fig Newtons" as applied 
to bakery products and cartons containing bakery prod- 
ucts, and that the Defendants have manifestly copied the 
same by the use of the word "Fig Sultana" and the 
copying of the carton embellishment or decoration, in 
the same manner of display, in connection with the Com- 
plainant's Trade Name or Mark "Fig Newtons" upon 
their carton. 

Eighth. — That the 'Complainant is the owner of the 
Trade Mark or Trade Name "Marshmallow Dainties" 
as applied to its carton bakery products, and that the 
Defendants have infringed and copied the same by the 
use thereof, upon their cartons of bakery products, in 
the same manner of display; 

Ninth. — That the Complainant is the owner of the 
Trade Name "Zu Zu" as applied to bakery products and 
cartons of bakery products and that the Defendants have 
simulated and copied the same, by the use of the words 
"Hoo Hoo" upon their Ginger Sua]) carton, in the same 
manner of display and having the same general appear- 
ance : 



-|Q,£ NATIONAL BISCUIT COMPANY vs. 

±VKJ PACIFIC COAST BISCUIT COMPANY 

Tenth. — That Complainant is the owner of the Trade 
Name or Trade Mark "Frotana" as applied to bakery 
products and cartons containing bakery products, and 
that Defendants have copied and infringed the same by 
the use of the word "Maritana" upon cartons of bakery 
products of similar size, color and decoration in the 
same manner of display as Complainant's cartons; 

Eleventh. — That Complainant is the owner of the 
Trade Mark or Trade Name "Cocoanut Dainties" as ap- 
plied to bakery products and cartons containing bakery 
products and that the Defendants have violated and in- 
fringed the same, by the use and application of the said 
Trade Mark or Trade Name "Cocoanut Dainties" to 
cartons of bakery products, in the same size, general ap- 
pearance of lettering and coloring, and in the same man- 
ner of display as Complainant's cartons; 

Twelfth. — That the Complainant is the owner of the 
Trade Mark or Trade Name "Old Time Sugar Cookies" 
as applied to bakery products and the cartons containing 
bakery products, and that the Defendants have violated, 
infringed and copied the same by the use of the word or 
name "Old Fashioned Sugar Cookies" upon cartons of 
the same size and shape and white coloring, and in the 
same manner of display of the Complainant; 

Thieteenth. — That the Complainant is the owner of 
the words, name or term "Celebrated Zwieback" as ap- 
plied by them to cartons of bakery products, and that the 
Defendants have copied and infringed the same by the 
use of the words "Genuine Zwieback" on packages of 
substantially the same size and in the same printing and 
manner of display as appears upon Complainant's car- 
tons ; 



NATIONAL BISCUIT COMPANY vs. 1Q7 

PACIFIC COAST BISCUIT COMPANY ±u ' 

Fourteenth. — That the Complainant is the owner of 
the Trade Mark or Name or designation i ' Fancy Assort- 
ment M as applied to cartons containing bakery products; 
that Defendants have copied and infringed the same by 
the use of the word or name "Fancy Assorted Cakes" 
upon cartons of the same size and prominent dress ap- 
pearance and in the same manner of display as Com- 
plainant's cartons; 

Fifteenth. — That Complainant is the owner of the 
Trade Mark or Trade Name "Oatmeal Crackers" as ap- 
plied by Complainant to a carton of bakery products, and 
that Defendants have copied and simulated the same by 
the use of the words "Abetta Oatmeal Crackers'' upon 
a carton in the same manner of display, and with the 
same coloring as upon Complainant's cartons; 

Sixteenth. — That Complainant is the owner of a 
Trade Mark, Animal Box, identified by the Pleadings 
and Proofs as Complainant's Animal Box, and that the 
Defendants have copied and infringed Complainant's 
rights therein by a complete simulation and copying 
thereof ; 

Seventeenth. — That the bundle package containing 
Complainant's carton formation enclosed for shipment 
and containing a red paster or label thereon, was origi- 
nated by the Complainant, and copied by the Defendants ; 

Eighteenth. — Tt is further ordered, adjudged and de- 
creed that an injunction be issued against the said De- 
fendants, corporation and individual, restraining them 
and each of them, their servants, agents, attorneys or 
employees from putting up and selling or offering for 
sale : 



-IQQ NATIONAL BISCUIT COMPANY VS. 

±vo PACIHC COAST BISCUIT COMPANY 

(a) Any carton of bakery product having thereon an 
imitation of Complainant's "In-er-seal" or red end seal 
Trade-Mark calculated to mislead or deceive, like De- 
fendants' ''Swastika" or red end seal or trade-mark. 

(b) Any carton of bakery products having thereon 
an imitation of Complainant's "Uneeda Biscuit" trade- 
name, calculated to mislead or deceive, like those on De- 
fendants' carton "Abetta Biscuit." 

(c) Any carton of bakery products having thereon an 
imitation of Complainant's trade-names "Uneeda Milk 
Biscuit," "Oysterettes," "Marshmallow Dainties," "Co- 
coanut Dainties," and ''Oatmeal Crackers," calculated to 
mislead or deceive, like those on Defendants' cartons re- 
spectively "Abetta Milk Biscuit," "Toke Point Oyster- 
ettes," "Marshmallow Dainties," "Cocoanut Dainties" 
and "Abetta Oatmeal Crackers." 

(d) The particular forms of cartons or packages re- 
ferred to in the bill of complaint and identified therein 
as "Complainant's Exhibit Defendants' Abetta Biscuit 
and Bed End Seal Carton Xo. 2," and "Complainant's 
Exhibit Defendants' Infringing Packages Xos. 3, 4, 5, 
6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16, respectively, or any 
other packages which shall by reason of the collocation 
of size, shape, colors, lettering, spacing and ornamenta- 
tion, present a general appearance as closely resembling 
Complainant's exhibits respectively referred to in the 
bill of complaint and marked as "Complainant's Exhibit 
Complainant's Cartons Trade-name Uneeda Biscuit 
Wrapper Xo. 2," and Complainant's Exhibit Complain- 
ant's Cartons Xos. 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14. 
15 and 16, as do the said Defendants' respective infring- 
ing packages aforementioned. But this shall not be con- 
strued to restrain the Defendants from selling such 
cartons with their asserted "Swastika" trade-mark there- 
on providing the trade-mark is so differentiated in gen- 



NATIONAL BISCUIT COMPANY vs. 1 QQ 

PACIFIC COAST BISCUIT COMPANY -^^ 

eral appearance and application from the Complainant's 
trade-mark, that it is not calculated to deceive or mislead 
the ultimate ordinary purchaser and shall not be con- 
strued as restraining the Defendants from selling pack- 
ages or cartons of the size, weight or shape of Complain- 
ant's packages, nor from using the respective colors as 
wrappers for such packages, provided such packages are 
so differentiated in general appearance from the said 
Complainant's respective packages, that they are not 
calculated to deceive the ultimate ordinary purchaser. 

Nineteenth. — And it is further ordered that the in- 
junction herein provided for shall not be actually issued 
until the first day of January, 1915. 

Twentieth. — It appearing to the Court that the De- 
fendants have made settlement with and paid the Com- 
plainant an agreed counsel fee provided by Statute to 
be fixed by the Chancellor on final decree, this decree shall 
be entered for taxable costs only including Four Hun- 
dred and Fifty and 40/100 Dollars ($450.40) paid to 
notaries and stenographers for taking and transcribing 
notes of testimony, and it is agreed that this decree is 
final without modification or appeal by either party there- 
from. The prayer for accounting being denied. 

"E. R. Walker, 

C/' 
Approved 

" Yredenburgh, Walt, & Carey," 

Solicitors for Complainant. 
"Collins & Corbtn," 

Solicitors for Defendants. 



200 



NATIONAL BISCUIT COMPANY vs. 
PACIFIC COAST BISCUIT COMPANY 




I, Eobeet H. McAdams, Clerk of the 
Court of Chancery of the State of 
New Jersey, the same being a court 
of Record, do hereby certify that 
the foregoing is a true copy of the 
Decree, filed Sept. 30, 1914, in a 
cause wherein The National Biscuit 
Company is complainant and The 
Pacific Coast Biscuit Company, et 
als., are defendants, now on the 
files of mv office. 



In testimony whereof, I have hereto set my hand and 
affixed the seal of said court, at Trenton, this thirtieth 
day of September, A. D. Nineteen hundred and fourteen. 

Robert H. McAdams, 

Clerk. 



NATIONAL BISCUIT COMPANY vs. OA1 

PACIFIC COAST BISCUIT COMPANY ^ ux 



NEW JERSEY, SS. 

THE STATE OF NEW JERSEY TO THE PACIFIC 
COAST BISCUIT COMPANY, CHARLES M. 
WARNER, JOHN C. HANRAHAN, WILLIAM M. 
LAWS, HERMAN WITTENBERG, MORITZ 
THOMSEN, CHARLES HOTCHKISS and A. M. 
BROOKES, OFFICERS AND DIRECTORS OF 
SAID PACIFIC COAST BISCUIT COMPANY, 
THEIR COUNSEL, ATTORNEYS, SOLICITORS 
AND AGENTS, AND EACH OF THEM, 

GREETING: 

WHEREAS, by a certain final decree made in our 
Court of Chancery of New Jersey, on the thirtieth day 
of September, 1914, in a certain cause therein depend- 
ing, wherein NATIONAL BISCUIT COMPANY, a cor- 
poration of the State of New Jersey, is Complainant, and 
PACIFIC COAST BISCUIT COMPANY, a corporation 
of the State of New Jersey, and CHARLES M. WAR- 
NER, JOHN C. HANRAHAN, WILLIAM M. LAWS, 
HERMAN WITTENBERG, MORITZ THOMSEN, 
CHARLES HOTCHKISS and A. M. BROOKES, 
Officers and Directors of Pacific Coast Biscuit Company, 
are Defendants, it was ordered, adjudged and decreed, 

First. — That the red end seal, known as the "In-er- 
seal," appearing upon the various carton bakery products 
of the Complainant, with white line markings thereon, is 
a good and valid Trade-Mark and the property of the 
Complainant, and that the red end seal appearing upon 
the ends of the carton products of Defendants, is an 
infringement upon the Complainant's red end seal; 

Second. — That the Complainant's Trade Name or 
Trade-Mark "Uneeda" is a good and valid trade-mark 



909 NATIONAL BISCUIT COMPANY vs. 

^ U ^ PACIFIC COAST BISCUIT COMPANY 

and name, and the property of the Complainant, and that 
Defendants' name or mark "Abetta" Biscuit, with its 
placement upon Defendants' carton, is an infringe- 
ment of said Complainant's name or mark herein; 

Third. — That Complainant's trade-mark or trade 
name "Nabisco" is the mark or name of the Complain- 
ant, and that Defendants' carton or package, with the 
words "Parfait" and " Fiesta" in the same manner of 
display, are infringements of Complainant's trade-mark 
or name "Nabisco" as applied, by the simulation there- 
with of the color scheme of the wrappers thereof; 

Fourth. — That the name, mark or words "Social 
Tea" Biscuit as applied by the Complainant upon car- 
tons of crackers, is the property of said Complainant, to- 
gether with the decoration and appearance of said pack- 
age, and that the Defendants' carton or package " Elite" 
Biscuit is a simulation and copying of said name or 
word designation in the same manner of display, of 
Complainant's on said package; 

Fifth. — That Complainant's trade-name, mark or 
term "Uneeda Milk Biscuit", and the decoration and 
marking on Complainant's carton of biscuit products is 
the trade-mark and trade name property of Complainant, 
and Defendants have markedly infringed the same by 
copying such carton in connection with the name "Abetta 
Milk Biscuit" in the same manner of display as Com- 
plainant's carton; 

Sixth. — That the word, term or name "Oysterettes" 
is the trade-mark or trade name property of the Com- 
plainant, and the Defendants have infringed and copied 
the same in the same manner of display as Complain- 
ant's carton; 



NATIONAL BISCUIT COMPANY vs. OAO 

PACIFIC COAST BISCUIT COMPANY £iKJO 

Seventh. — That the Complainant is the owner of the 
trade-mark or trade name "Fig Newtons" as applied to 
hakery products and cartons containing bakery products, 
and that the Defendants have manifestly copied the 
same by the use of the word "Fig Sultana" and the 
copying of the carton embellishment or decoration, in the 
same manner of display, in connection with Complain- 
ant's trade-name or mark "Fig Newtons" upon their 
carton ; 

Eighth. — That the Complainant is the owner of the 
trade-mark or trade name "Marshmallow Dainties" as 
applied to its carton bakery products, and that the De- 
fendants have infringed and copied the same by the 
use thereof, upon their cartons of bakery products, in 
the same manner of display; 

Ninth. — That the Complainant is the owner of the 
trade-name "Zu Zu" as applied to bakery products and 
cartons of bakery products, and that the Defendants have 
simulated and copied the same, by the use of the words 
"Hoo Hoo" upon their Ginger Snap carton, in the same 
manner of display and having the same general appear- 
ance ; 

Tenth. — That Complainant is the owner of the trade 
name or trade-mark "Frotana" as applied to bakery 
products and cartons containing bakery products, and 
that Defendants have copied and infringed the same by 
the use of the word "Maritana" upon cartons of bakery 
products of similar size, color and decoration in the same 
manner of display as Complainant's cartons; 

Eleventh. — That Complainant is the owner of the 
trade-mark or trade name "Cocoanut Dainties" as ap- 
plied to bakery products and cartons containing bakery 



Ofl/I NATIONAL BISCUIT COMPANY vs. 

^- u,± PACIFIC COAST BISCUIT COMPANY 

products and that the Defendants have violated and in- 
fringed the same by the nse and application of the said 
trade-mark or trade name "Cocoanut Dainties" to car- 
tons of bakery products, in the same size, general appear- 
ance of lettering and coloring, and in the same manner 
of display as Complainant's cartons; 

Twelfth. — That the Complainant is the owner of the 
trade-mark or trade name ' l Old Time Sugar Cookies ' ' as 
applied to bakery products and the cartons containing 
bakery products, and that the Defendants have violated, 
infringed and copied the same by the use of the word 
or name "Old Fashioned Sugar Cookies" upon cartons 
of the same size and shape and white coloring, and in 
the same manner of display of the Complainant ; 

Thirteenth. — That the Complainant is the owner of 
the words, name or term "Celebrated Zwieback" as ap- 
plied by them to cartons of bakery products, and that the 
Defendants have copied and infringed the same by the 
use of the words "Genuine Zwieback" on packages of 
substantially the same size and in the same printing and 
manner of display as appears upon Complainant's car- 
tons ; 

Fourteenth. — That the Complainant is the owner of 
the trade-mark or name or designation "Fancy Assort- 
ment" as applied to cartons containing bakery products; 
that Defendants have copied and infringed the same by 
the use of the word or name "Fancy Assorted Cakes" 
upon cartons of the same size and prominent dress ap- 
pearance and in the same manner of display as Com- 
plainant's cartons; 

Fifteenth. — That Complainant is the owner of the 
trade-mark or trade name "Oatmeal Crackers" as ap- 



NATIONAL BISCUIT COMPANY vs. OAK 

PACIFIC COAST BISCUIT COMPANY LKJ 

plied by Complainant to a carton of bakery products, and 
that Defendants have copied and simulated the same by 
the use of the words "Abetta Oatmeal Crackers" upon 
a carton in the same manner of display, and with the 
same coloring as upon Complainant's cartons; 

Sixteenth. — That Complainant is the owner of a 
trade-mark, Animal Box, identified by the pleadings and 
proofs as Complainant's Animal Box, and that the De- 
fendants have copied and infringed Complainant's rights 
therein by a complete simulation and copying thereof ; 

Seventeenth. — That the bundle package containing 
Complainant's carton formation enclosed for shipment 
and containing a red paster or label thereon, was orig- 
inated by the Complainant, and copied by the Defend- 
ants ; 

Eighteenth. — It is further ordered, adjudged and 
decreed that an injunction be issued against the said De- 
fendants' corporation and individuals, restraining them 
and each of them, their servants, agents, attorneys or 
employees from putting up and selling or offering for 
sale: 

(a) Any carton of bakery product having thereon an 
imitation of Complainant's "In-er-seal" or red end seal 
trade-mark calculated to mislead or deceive, like Defend- 
ants' "Swastika" or red end seal or trade-mark. 

(b) Any carton of bakery products having thereon 
an imitation of Complainant's "Uneeda Biscuit" trade 
name, calculated to mislead or deceive, like those on De- 
fendants' carton "Abetta Biscuit". 

(c) Any carton of bakery products having thereon an 
imitation of Complainant's trade names "Uneeda Milk 
Biscuit," "Oysterettes," "Marshmallow Dainties," 



Ofkft NATIONAL BISCUIT COMPANY vs. 

^ uu PACIFIC COAST BISCUIT COMPANY 

"Cocoanut Dainties," and "Oatmeal Crackers," calcu- 
lated to mislead or deceive, like those on Defendants' 
cartons respectively "Abetta Milk Biscuit," "Toke 
Point Oysterettes," " Marslimallow Dainties," "Cocoa- 
nut Dainties" and "Abetta Oatmeal Crackers." 

(d) The particular forms of cartons or packages re- 
ferred to in the bill of complaint and identified therein 
as "Complainant's Exhibit Defendants' Abetta Biscuit 
and Red End Seal Carton No. 2" and "Complainant's 
Exhibit Defendants' Infringing Packages Nos. 3, 4, 5, 6, 
7, 8, 9, 10, 11, 12, 13, 14, 15 and 16, respectively," or any 
other packages which shall by reason of the collocation 
of size, shape, colors, lettering, spacing and ornamenta- 
tion, present a general appearance as closely resembling 
Complainant's exhibits respectively referred to in the 
bill of complaint and marked as "Complainant's Exhibit 
Complainant's Cartons Trade Name Uneeda Biscuit 
Wrapper No. 2" and Complainant's Exhibit Complain- 
ant's Cartons Nos. 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 
and 16, as do the said Defendants' respective infringing 
packages aforementioned. But this shall not be con- 
strued to restrain the Defendants from selling such car- 
tons with their asserted "Swastika" trade-mark thereon 
providing the trade-mark is so differentiated in general 
appearance and application from the Complainant's 
trade-mark that it is not calculated to deceive or mislead 
the ultimate ordinary purchaser and shall not be con- 
strued as restraining the Defendants from selling pack- 
ages or cartons of the size, weight or shape of Complain- 
ant's packages, nor from using the respective colors as 
wrappers for such packages, provided such packages are 
so differentiated in general appearance from the said 
Complainant's respective packages, that they are not cal- 
culated to deceive the ultimate ordinary purchaser. 

And it was further ordered, adjudged and decreed 



NATIONAL BISCUIT COMPANY vs. qa 7 

TACIFIC COAST BISCUIT COMPANY ^ U • 

that an injunction do issue out of this court accord- 
ingly. 

WE THEREFORE, ON CONSIDERATION OF 
THE PREMISES, do hereby strictly enjoin and com- 
mand you, the said PACIFIC COAST BISCUIT COM- 
PANY, CHARLES M. "WARNER, JOHN C. HANRA- 
HAN, WILLIAM M. LAWS, HERMAN WITTEN- 
BERG, MORITZ THOMSEN, CHARLES HOTCHKISS 
and A. M. BROOKES, Officers and Directors of Pacific 
Coast Biscuit Company, your counsel, attorneys, 
solicitors and agents, and each of you, under the penalty 
that may fall thereon, that you and each of you from 
henceforth and forever, do absolutely desist and refrain 
from imitating or simulating any of the Trade-Marks or 
Trade Names above identified, or manufacturing or sell- 
ing or handling cartons of bakery products having there- 
on any imitation of the respective Trade-Marks and 
Trade Names above identified, and from putting up or 
offering for sale the particular forms of cartons or pack- 
ages above identified or any other forms of packages or 
cartons respectively which shall, by reason of collocation 
of size, shape, colors, lettering, spacing or ornamentation 
present a general appearance resembling Complainant's 
several and respective cartons and packages identified 
and referred to in the bill of complaint and identified by 
the decree herein, and from the bundling of such car- 
tons or packages in the manner, color, size and shape as 
shown by the respective exhibits herein. 

WITNESS Honorable Edwin Robert Walker, our 
Chancellor, at Trenton this sixteenth day of January, 
in the year of our Lord One thousand nine hundred and 
fifteen. 

Robert II. McAdams, 
Clerk. 
Vredenbttrgh, Wall & Carey, 
Solicitors for Complainant. 



208 



NATIONAL BISCUIT COMPANY vs. 
PACIFIC COAST BISCUIT COMPANY 




I, Eobeet H. McAdams, Clerk of the 
Court of Chancery of the State of 
New Jersey, the same being a Court 
of Kecord, do hereby certify that 
the foregoing is a true copy of the 
Writ of Injunction, in the cause 
wherein National Biscuit Company 
is Complainant and Pacific Coast 
Biscuit Company, et als., are De- 
fendants, now on the files of my 
office. 



In Testimony Whereof, I have hereto set my hand and 
affixed the seal of said Court, at Trenton, this Sixteenth 
day of January, A. D. Nineteen hundred and fifteen. 

Eobt. H. McAdams, 

Clerk. 



Service of the within Injunction is hereby acknowl- 
edged for the Defendants this 18th day of January, 1915. 

Collin's & Cokbint, 
Solicitors for Defendants. 



NATIONAL BISCUIT COMPANY vs. 
PACIFIC COAST BISCUIT COMPANY 



209 





210 



NATIONAL BISCUIT COMPANY vs. 
PACIFIC COAST BISCUIT COMPANY 





NATIONAL BISCUIT COMPANY vs. 
PACIFIC COAST BISCUIT COMPANY 



211 






212 



NATIONAL BISCUIT COMPANY vs. 
PACIFIC COAST BISCUIT COMPANY 





NATIONAL BISCUIT COMPANY vs. 
PACIFIC COAST BISCUIT COMPANY 



213 





214 



NATIONAL BISCUIT COMPANY VS. 
PACIFIC COAST BISCUIT COMPANY 





NATIONAL BISCUIT COMPANY vs. 
PACIFIC COAST BISCUIT COMPANY 



215 





216 



NATIONAL BISCUIT COMPANY vs 
PACIFIC COAST BISCUIT COMPANY 





NATIONAL BISCUIT COMPANY vs. 
PACIFIC COAST BISCUIT COMPANY 



217 



\^\o 



^V&NSCVS* 



covins* 



M°££r>®s' JO " 




218 



NATIONAL BISCUIT COMPANY VS. 
PACIFIC COAST BISCUIT COMPANY 





NATIONAL BISCUIT COMPANY vs. 
PACIFIC COAST BISCUIT COMPANY 



219 





22 



NATIONAL BISCUIT COMPANY 
PACIFIC >ASI BISCUIT COMPANY 



\T\OS.^ 



tSS^cx^^ 






4&ssz&iifc 




NATIONAL BISCUIT COMPANY vs. 
PACIFIC COAST BISCUIT COMPANY 



221 





222 



NATIONAL BISCUIT COMPANY vs. 
PACIFIC COAST BISCUIT COMPANY 





NATIONAL BISCUIT COMPANY vs. 
rACIFIC COAST BISCUIT COMPANY 



223 




Assorted 



(Bakes 



j^0]S^B 



CflKESi 



224 



NATIONAL BISCUIT COMPANY vs. 
PACIFIC COAfcT BISCLIT COMPANY 





NATIONAL BISCUIT COMPANY vs 
PACIFIC COAST BISCUIT COMPANY 



225 





226 



NATIONAL BISCUIT COMPANY vs. 
PACIFIC COAST BISCUIT COMPANY 





NATIONAL BISCUIT COMPANY vs. 
PACIFIC COAST BISCUIT COMPANY 



227 









228 



NATIONAL BISCUIT COMPANY vs. 
PACIFIC COAST BISCUIT COMPANY 





TABLES OF INFRINGEMENTS 



229 



TABLES OF INFRINGEMENTS 

In addition to the foregoing, the following tables show 
infringements of trade marks, trade names, labels, and 
the equitable rights of National Biscuit Company therein 
as abandoned by two hundred and eighty-eight manu- 
facturers under notice, but without suit. 

NATIONAL BISCUIT COMPANY 
R. E. Tomunson 

Counsel 
New York, 
February 1915 



230 INFRINGEMENTS ABANDONED WITHOUT SUIT 



ABANDONMENTS AS OF JANUARY, 1906 

(Third Edition) 

In-er-seal Trade Mark 58 

Uneeda Biscuit 29 

Red Label Graham 27 

Ribbon Tying Design 22 

Mary Ann 22 

Social Tea 13 

ZuZu 11 

Lemon Snaps label „ 6 

Oysterettes 6 

Jonnie 4 

Faust 4 

Saratoga Flakes label, Tid Bit, City Soda label,Pre- 

mium Biscuit, Saltine label, Etc., Etc 47 

Total 249 



INFRINGEMENTS ABANDONED WITHOUT SUIT 



231 



ABANDONMENTS AS OF JANUARY, 1907 

(Fourth Edition) 

In-er-seal Trade Mark 80 

Uneeda Biscuit 35 

Red Label Graham 31 

Ribbon Tying Design 26 

Mary Ann 28 

Social Tea 15 

Zu Zu 11 

Lemon Snaps label 8 

Oysterettes 10 

Jonnie 4 

Faust 9 

Refillers of Cans and Boxes 12 

Saratoga Flakes label, Nabisco, City Soda label, Pre- 
mium Biscuit, London Cream Biscuit, Saltine 
label, Oatmeal Crackers label, Tid Bit, Eagle, 

Etc., Etc., Etc 61 

Total 330 



232 INFRINGEMENTS ABANDONED WITHOUT SUIT 

ABANDONMENTS AS OF JANUARY, 1915 

(Fifth Edition) 

[n-er-seal Trade-Mark 145 

CJneeda Biscuit 58 

Red Label Graham 48 

Ribbon Tying Design 35 

Mary Ann 37 

Social Tea 35 

Zu Zu 18 

Lemon Snaps label 13 

Oysterettes 19 

Jonnie 8 

Faust 10 

Saratoga Flakes 12 

Oatmeal Crackers label. 9 

Eagle 8 

Royal 21 

Five O'Clock 13 

Nabisco 10 

Premium 10 

Sorbetto 10 

Cow Design 15 

Fig Newtons 10 

Dainties 10 

Tid-Bit 10 

Refillers of Cans and Boxes 72 

American Beauty, Crispy, Champion Cameo, 
Festino, Golden Rod, Kream Klips, Picnic, 
Pretzelettes, Old Time, Shell, Star, Sea Foam, 

Taffy, etc., etc 197 

Total 833 



INFRINGEMENTS ABANDONED 



SUMMARY OF ABANDONMENTS BY YEARS 



233 



1905 1906 1907 1908 1909 1910 1911 1912 1913 1914 

In-er-seal Trade Mark.. 58 80 96 108 120 128 133 134 137 145 

Uneeda Biscuit 29 35 37 39 42 45 49 51 52 58 

Red Label Graham.... 27 31 35 41 42 42 42 43 43 48 

Ribbon Design 22 26 29 29 29 29 29 29 29 35 

Mary Ann 22 28 29 30 30 32 33 35 35 37 

Social Tea 13 15 17 21 24 24 28 29 31 35 

Zu Zu 11 11 12 13 13 13 13 14 15 18 

Lemon Snaps Label.... 6 8 9 12 12 13 13 13 13 13 

Oysterettes 6 10 11 12 12 13 15 15 15 19 

Jonnie 4 4 4 6 7 7 7 8 8 8 

Faust 4 9 10 10 10 10 10 10 10 10 

Saratoga Flakes 3 3 6 6 9 10 10 12 12 12 

Oatmeal Crackers Label 13 5 6677779 

Eagle — 4 4 5 6 8 8 8 8 8 

Royal 2 2 5 6 7 10 12 15 16 21 

Five O'Clock — — 3 5 5 6 8 10 11 13 

Nabisco — 2 3 3 5 5 8 8 8 10 

Premium — 2 3 6 6 8 9 9 9 10 

Sorbetto — — 3 3 5 10 10 10 10 10 

Cow Design — — 3 5 8 12 12 12 13 15 

Fig Newtons — — — — 1 2 3 4 5 10 

Dainties — — — — 1 2 2 2 2 10 

Tid-Bit 3 3 3 3 3 3 3 3 6 10 

Refillers of Cans and 

Boxes 2 12 14 26 30 37 55 63 69 72 

American Beauty, Crispy, 

Champion, Cameo, 

Festino, Golden Rod, 

Kream Klips, Picnic, 

Pretzelettes, Old Time, 

Shell, Star, Sea Foam, 

Taffy, etc., etc 36 42 57 77 81 90 93 100 110 197 

Total by Notice 249 330 398 472 514 566 612 644 674 833 

By Injunction 19 32 32 32 32 32 32 32 32 49 

268 362 430 504 546 598 644 676 706 883 






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